State v. James Elvin Lagrone , 368 Wis. 2d 1 ( 2016 )

2016 WI 26
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1424-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
James Elvin Lagrone,
Defendant-Appellant-Petitioner.
A REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: April 22, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 25, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Richard J. Sankovitz
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. dissents, joined by
ABRAHAMSON, J.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Kaitlin A. Lamb, assistant state public defender and oral
argument by Kaitlin A. Lamb.
For the plaintiff-respondent, the cause was argued by
Katherine D. Lloyd, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
2016 WI 26
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1424-CR
(L.C. No. 2011CF1996)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. APR 22,2016
James Elvin Lagrone, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. 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unpublished decision of the court of appeals, State v. Lagrone,
No. 2013AP1424-CR, unpublished slip op.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 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.
2
No. 2013AP1424-CR
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 on-
the-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.
3
No. 2013AP1424-CR
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.
4
No. 2013AP1424-CR
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)
5
No. 2013AP1424-CR
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."
6
No. 2013AP1424-CR
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."
7
No. 2013AP1424-CR
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.
8
No. 2013AP1424-CR
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)
9
No. 2013AP1424-CR
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.
10
No. 2013AP1424-CR
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.
11
No. 2013AP1424-CR
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.
12
No. 2013AP1424-CR
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
13
No. 2013AP1424-CR
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).
14
No. 2013AP1424-CR
¶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
15
No. 2013AP1424-CR
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.
16
No. 2013AP1424-CR
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
17
No. 2013AP1424-CR
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
18
No. 2013AP1424-CR
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)
19
No. 2013AP1424-CR
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."
20
No. 2013AP1424-CR
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
21
No. 2013AP1424-CR
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
22
No. 2013AP1424-CR
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-
23
No. 2013AP1424-CR
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).).
24
No. 2013AP1424-CR
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).
25
No. 2013AP1424-CR
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
26
No. 2013AP1424-CR
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 self-
incrimination contained in Article I, Section 8 of the Wisconsin
Constitution.
27
No. 2013AP1424-CR
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
28
No. 2013AP1424-CR
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)
29
No. 2013AP1424-CR
¶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.
30
No. 2013AP1424-CR
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.
31
No. 2013AP1424-CR
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.
32
No. 2013AP1424-CR
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)
33
No. 2013AP1424-CR
¶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]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 . . ." (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).).
34
No. 2013AP1424-CR
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
35
No. 2013AP1424-CR
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.
36
No. 2013AP1424-CR
¶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.,
37
No. 2013AP1424-CR
¶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
38
No. 2013AP1424-CR
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.
39
No. 2013AP1424-CR
¶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."
40
No. 2013AP1424-CR
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. CONCLUSION
¶57 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. Further, Lagrone is not entitled to an evidentiary
hearing because he has not made the requisite showing for such a
hearing. Accordingly, we affirm the decision of the court of
appeals.
By the Court.— The decision of the court of appeals is
affirmed.
41
No. 2013AP1724.awb
¶58 ANN WALSH BRADLEY, J. (dissenting). At issue in
this case is whether a circuit court is required to conduct an
on-the-record colloquy regarding the waiver of the right to
testify at the responsibility phase of a bifurcated criminal
trial.
¶59 Lagrone asserts that he had a right to testify at the
responsibility phase of a bifurcated criminal trial and that an
on-the-record right to testify colloquy is required. Even the
State concedes that he has such a right, but contends that it is
not a fundamental right requiring a colloquy.
¶60 Ultimately the majority concludes 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. In reaching its conclusion that no colloquy
is required, the majority skews the record and contravenes
controlling precedent.
¶61 Contrary to the majority, I conclude that precedent
mandates more than a "better practice" admonition. Both the
United States Supreme Court and Wisconsin precedent support the
conclusion that there is a fundamental right to testify at the
second phase of a bifurcated criminal trial conducted pursuant
to Wis. Stat. § 971.165(1)(a).1 A right to testify colloquy is
1
When a defendant pleads not guilty by reason of mental
disease or defect, the circuit court follows the procedure for a
bifurcated trial set forth in Wis. Stat. § 971.165(1)(a) which
provides:
(continued)
1
No. 2013AP1724.awb
required in order to ensure that a defendant knowingly,
intelligently and voluntarily waived the fundamental right to
testify.2 I would reverse the court of appeals and remand to the
circuit court for an evidentiary hearing.3 Accordingly, I
respectfully dissent.
There shall be a separation of the issues with a
sequential order of proof in a continuous trial. The
plea of not guilty shall be determined first and the
plea of not guilty by reason of mental disease or
defect shall be determined second.
If the defendant pleads guilty or is found guilty by a jury
during the first phase, the trial proceeds to the second phase.
In the second phase, a jury determines whether "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." Wis.
Stat. § 971.15(1).
2
Lagrone also asserts a claim under the Wisconsin
Constitution. 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." However, he does not argue this claim separately from
his federal constitutional claim. Accordingly, we address the
arguments as presented by Lagrone.
3
Pursuant to State v. Garcia, 2010 WI App 26, ¶¶1, 9, 14,
323 Wis. 2d 531, 779 N.W.2d 718, when a circuit court fails to
conduct a colloquy regarding the waiver of the right to testify,
the defendant's remedy is an evidentiary hearing. The harmless
error analysis set forth in State v. Nelson, 2014 WI 70, 355
Wis. 2d 722, 849 N.W.2d 317, does not apply because Lagrone
filed his motion prior to this court's decision in Nelson.
Additionally, Nelson arguably is distinguishable because it
applies to the denial of a defendant's assertion of the right to
testify, not a circuit court's failure to conduct a colloquy.
Id. at ¶15-16.
2
No. 2013AP1724.awb
I.
¶62 At the outset, I observe that the majority opinion
skews the evidentiary record in this case. It obfuscates an
important fact and minimizes others.
¶63 The majority obfuscates the fact that the circuit
court failed to conduct a colloquy regarding the waiver of
Lagrone's right to testify at either phase of the bifurcated
trial. It correctly states that at the responsibility phase the
circuit court neither informed Lagrone that he had a right to
testify, nor asked Lagrone whether he was waiving his right to
testify. See Majority op., ¶13. However, it fails to
acknowledge that at the guilt phase of the trial the circuit
court also failed to conduct the required colloquy regarding the
right to testify.
¶64 The colloquy with Lagrone during the guilt phase of
the bifurcated trial is buried in a footnote in the majority
opinion. See majority op., ¶11 n.12. The circuit court did not
question Lagrone about whether he understood that he was waiving
his right to testify:
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? Majority op,
¶11 n. 12.
¶65 Under State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434,
666 N.W.2d 485, this was an insufficient plea colloquy. Weed
3
No. 2013AP1724.awb
requires that a circuit court conduct an on-the-record, right to
testify colloquy. "The colloquy should consist of a basic
inquiry to ensure that (1) the defendant is aware of his or her
right to testify and (2) the defendant has discussed this right
with his or her counsel." Id., ¶43.
¶66 The majority skirts this deficiency by telling the
reader only that "Lagrone does not challenge the plea colloquy
that occurred during the guilt phase of his bifurcated NGI
proceedings." Majority op., ¶4. Further obscuring the
deficiency in another footnote, the majority explains that
"nothing in this opinion affects our instruction in State v.
Weed that circuit courts conduct an on-the-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." Majority op., ¶5 n.3.
¶67 Although Lagrone does not challenge the plea colloquy
at the guilt phase of the trial, it is problematic to obscure
this significant deficiency from the reader. The lack of a
colloquy regarding Lagrone's right to testify and waiver of that
right at the guilt phase of the bifurcated trial amplifies the
absence of a colloquy at the responsibility phase. Without any
colloquy at either stage in the proceedings, there is nothing in
the record that indicates Lagrone was knowingly, intelligently
and voluntarily waiving his right to testify.
¶68 Perhaps because there is nothing in the record
regarding Lagrone's waiver of his right to testify, the majority
4
No. 2013AP1724.awb
relies on a hand-written note on a plea advisement and a waiver
of rights form to suggest that Lagrone knew he had a right to
testify. Tucked away in another footnote, the plea form
discussion is minimized along with the majority's explanation
for that form. See majority op., ¶¶11 n.11, 56 n.29.
¶69 As relevant to the right to testify, it provides:
The court of appeals interpreted the hand-written notation
("True for phase I, not for II") to mean that Lagrone was
preserving his right to testify at the second phase of the
trial. State v. Lagrone, No. 2013AP1424-CR, unpublished slip
op., ¶18 (Wis. Ct. App. Apr. 7, 2015) (explaining "Lagrone was
giving up his right to testify in the first phase but not the
second phase of the proceeding.").
¶70 Jettisoning the plain meaning interpretation of the
court of appeals, the majority instead grasps at a curious
alternative interpretation. By conflating the discreet right of
the defendant to testify with the general right to present
evidence and testimony, the majority interprets the hand written
notation to mean "that Lagrone and his counsel indeed understood
that Lagrone could present evidence and testimony during the
responsibility phase." Majority op., ¶56 n.29.
¶71 If the majority is going to rely on its curious
interpretation of a hand-written note to assert that Lagrone
fully understood his right to testify and knowingly,
intelligently and voluntarily waived that right at the
5
No. 2013AP1724.awb
responsibility phase, then it should not minimize this part of
its analysis by relegating it to a footnote. Perhaps by tucking
the discussion of the form in a footnote, the majority indicates
that it is aware of how slender the reed is upon which it rests
its assertion that Lagrone knowingly, intelligently and
voluntarily waived his right to testify.
II.
¶72 Not only does the majority opinion skew the record, it
contravenes controlling precedent. Unlike the majority, I would
follow well-established United States Supreme Court and
Wisconsin precedent in reaching the conclusion that the
fundamental constitutional right of a criminal defendant to
testify on one's behalf applies during the second phase of a
bifurcated criminal trial. Any waiver of that right must be
subjected to an on-the-record colloquy to ensure that the waiver
is knowingly, intelligently and voluntarily made.
¶73 The legal precedent underpinning my conclusion is
straightforward. Although the right to testify at the second
phase of a bifurcated criminal trial is an issue of first-
impression before this court, the fundamental constitutional
right of a defendant to testify on his own behalf is well-
established. See Weed, 263 Wis. 2d 434, ¶¶39-40 (a circuit
court must conduct a personal colloquy on-the-record in order to
ensure that the defendant knowingly, intelligently and
voluntarily waived the fundamental right to testify).
¶74 In Rock v. Arkansas, the United States Supreme Court
concluded that the right to testify is a "necessary corollary to
6
No. 2013AP1724.awb
the Fifth Amendment's guarantee against compelled testimony."
Rock, 483 U.S. 44, 52 (citing Harris v. New York, 401 U.S. 222,
230 (1971)). When a criminal defendant has Fifth Amendment
privilege against self-incrimination, there is also a
corresponding right to testify in one's defense.4
¶75 As the Rock court explained, "[e]very criminal
defendant is privileged to testify in his own defense, or to
refuse to do so." Id. at 53 (citing Harris, 401 U.S. at 225).
The Fifth Amendment's privilege against self-incrimination "is
fulfilled only when an accused is guaranteed the right to remain
silent unless he chooses to speak in the unfettered exercise of
his own will." Id. (citing Malloy v. Hogan, 378 U.S. 1, 8
(1964) (emphasis removed)). Accordingly, the choice of whether
to testify is an exercise of the constitutional privilege. Id.
¶76 In Wisconsin, the Fifth Amendment privilege applies
beyond the guilty phase of the bifurcated criminal trial.5 Over
thirty years ago, this court determined that the Fifth Amendment
privilege "continues at least until sentencing." State v.
4
The Fifth Amendment privilege applies to the states
through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1,
6 (1964).
5
The majority acknowledges that Wisconsin's Fifth Amendment
jurisprudence conforms generally with the U.S. Supreme Court
jurisprudence. See Majority op., ¶43. As the U.S. Supreme
Court explained in Lefkowitz v. Turley, 414 U.S. 70, 77 (1973),
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."
7
No. 2013AP1724.awb
McConnohie, 121 Wis. 2d 57, 63, 358 N.W.2d 256 (1984). Twenty
years ago, this court determined that a defendant retains his or
her Fifth Amendment privilege while an appeal is pending or
before the time for an appeal as of right or plea withdrawal has
expired. State v. Marks, 194 Wis. 2d 79, 92, 533 N.W.2d 730
(1995).
¶77 For the past fifteen years, it has been well-
established that the Fifth Amendment applies to the second phase
of a bifurcated criminal trial. State v. Langenbach, 2001 WI
App 222, ¶9, 247 Wis. 2d 933, 634 N.W.2d 916. As the Langenbach
court explained, "[b]ecause there is a possibility that
Langenbach could be sentenced in this matter if the jury finds
him to be mentally responsible for his actions, his Fifth
Amendment privileges survive his no contest pleas." Id.
¶78 Thus, the inexorable conclusion is that Lagrone has a
Fifth Amendment right to testify at the second phase of his
bifurcated criminal trial. The United States Supreme Court
instructs that the right to testify is a "necessary corollary to
the Fifth Amendment's guarantee against compelled testimony."
Rock, 483 U.S. at 52 (citing Harris, 401 U.S. at 230). Under
Wisconsin law, the Fifth Amendment privilege against compelled
testimonial self-incrimination continues through the mental
responsibility stage of a bifurcated criminal trial.
Langenbach, 247 Wis. 2d 933, ¶20.
¶79 Despite the overwhelming weight of the law to the
contrary, the majority concludes that the fundamental right to
testify on one's own behalf at a criminal trial does not extend
8
No. 2013AP1724.awb
to the responsibility phase of bifurcated criminal trial.
Majority op., ¶41. As observed above, in reaching this
conclusion the majority contravenes both Unites States Supreme
Court precedent and Wisconsin law.
¶80 The majority protests Rock's determination that the
right to testify is a "necessary corollary" to the Fifth
Amendment privilege against self-incrimination. According to
the majority, the conclusion that the right to testify is
available wherever the Fifth Amendment privilege is available
"has no basis in the federal constitution and is impracticable."
Majority op., ¶44. In its attempt to deny Lagrone his Fifth
Amendment right to testify here, the majority creates a straw
man out of the fear that every litigant in every proceeding——
civil and criminal——will now have a right to testify.
¶81 The majority's fear of unlimited and impracticable
expansion of the Fifth Amendment right to testify is unfounded.
Lagrone never argues that the Fifth Amendment fundamental right
to testify is applicable to every proceeding. Rather, the issue
before the court in this case is limited to whether the Fifth
Amendment right to testify applies to the second phase of a
bifurcated criminal trial, not whether it applies to every
imaginable proceeding.
¶82 Relying on State v. Magett, 2014 WI 67, 355 Wis. 2d
617, 850 N.W.2d 42 and State v. Koput, 142 Wis. 2d 370, 418
N.W.2d 804 (1988), the majority misconstrues Wisconsin law by
arguing that the responsibility phase of the bifurcated trial is
not a criminal trial and therefore the rights afforded a
9
No. 2013AP1724.awb
criminal defendant do not apply.6 According to the majority, the
fundamental right to testify 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.'"
Majority op., ¶40 (citing Rock, 483 U.S. at 51).
¶83 The majority disregards Wisconsin case law that is
directly on point. In State v. Murdock, the court of appeals
explained the interconnection between the first and second
phases of a bifurcated criminal trial. 2000 WI App 170, ¶¶24-
25, 238 Wis. 2d 301, 617 N.W.2d 175.
¶84 Relying on Koput, the Murdock court explained that the
mental responsibility phase could have evolved as an entirely
separate procedure from the guilt phase. Id., ¶24 (citing
Koput, 142 Wis. 2d at 394). As Murdock correctly acknowledged,
the statutes governing the bifurcated trial for NGI pleas
remains in Chapter 971, which governs criminal procedure. The
legislature has "kept the responsibility phase and guilt phase
attached in procedure even as they are detached in nature and
purpose." Id. Thus, the Murdock court considered that "the
6
In State v. Koput, this court determined that "the
responsibility phase of the bifurcated trial is not an integral
part of the criminal trial, but is rather a special proceeding
in the criminal process. . . ." 142 Wis. 2d 370, 374, 418
N.W.2d 804 (1988). More recently, in State v. Magett, this
court explained that the "history of trials involving NGI pleas
demonstrates that the current responsibility phase has undergone
a transformation from a criminal proceeding to something close
to a civil trial." 2014 WI 67, ¶39, 355 Wis. 2d 617, 850 N.W.2d
42.
10
No. 2013AP1724.awb
responsibility phase has not been procedurally removed from the
criminal proceedings." Id. at ¶25.
¶85 The majority fails to address Murdock head-on and
instead attempts to distinguish it in a footnote. See Majority
op., ¶44 n.22. According to the majority, the fact that the
guilt and responsibility phases are attached in procedure is
much more relevant to the question in Murdock of whether the
jury waiver statute applies equally to both phases than it is to
the constitutional question here. Id. The majority's analysis
of Murdock is cursory and unpersuasive because it provides no
reason why the wavier of a right might be different in this case
as it relates to the bifurcated procedure.
¶86 Furthermore, in Langenbach, the court of appeals
explained that the responsibility phase "remains a part of the
criminal case in general." 247 Wis. 2d 933, ¶19. In the same
footnote, the majority dispenses with Langenbach. Majority op.,
¶44 n.22. It argues that a statement in the responsibility
phase could only be incriminating for the purpose of some other
proceeding and that "[i]n any event, that line of reasoning was
apparently not essential to the Langenbach court's holding."
Id. Thus, the majority does not overrule either Langenbach or
Murdock, but instead dismisses both opinions in a footnote.
¶87 Rather than follow Murdock and Langenbach, the
majority relies on differences relating to the defendant's
burden of proof between the two phases of a bifurcated criminal
11
No. 2013AP1724.awb
trial in order to argue that the second phase is not part of the
criminal trial.7 However, as Justice Gableman stated during oral
argument, regardless of the different burden the stakes are the
same:
But in this kind of case, if the defendant does not
meet his or her burden, then they wind up like Mr.
Lagrone going to the Wisconsin state prison system.
And so I'm trying to wrestle with, and I'm wondering
if you can help me to resolve, how it would be less
important for the personal colloquy at the NGI phase
as it is at the guilt or innocence phase?
. . .
The stakes are the same. Its prison or not prison.
¶88 Not only is the potential outcome after both phases of
the trial the same, but the defendant's burden of proof in the
second phase may make his or her testimony even more critical
than during the first phase. Given that expert testimony is not
a prerequisite to proving a mental disease or defect, it may be
the defendant's own testimony that provides the most potent
testimony in meeting the burden of proof. See Magett, 355 Wis.
2d 617, ¶41-44. By testifying, a defendant has the opportunity
7
First, the defendant, rather than the State, bears the
burden of establishing mental disease or defect. See Wis. Stat.
§ 971.15(3). Second, the defendant's burden is "to a reasonable
certainty by the greater weight of the credible evidence,"
rather than "beyond a reasonable doubt." Id. Third, the
defendant needs only a five-sixths verdict, rather than a
unanimous jury. Magett, 355 Wis. 2d 617, ¶39. Fourth, in
contrast to 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 does not meet his burden." Id.
12
No. 2013AP1724.awb
to take the stand, face the jury and explain his side of the
events, hoping to persuade those who sit in judgment.
¶89 The majority’s failure to recognize that the stakes
are the same at both phases of a bifurcated criminal trial also
impairs the majority's due process analysis. Its analysis rests
in part on the faulty premise that it need not address the
contours of Lagrone's due process right to testify because "he
was afforded such an opportunity in this case." Majority op.,
¶50. It seems to believe that because the circuit court asked
whether Lagrone wished to present any further evidence, he could
infer that the circuit court was asking whether he wished to
testify. The analysis fails to recognize that the right to offer
evidence and the right to testify on one's behalf are separate
rights.
¶90 Although the majority concedes that the responsibility
phase is "not necessarily exempted from the broad mandates of
the Due Process Clause," its faulty premise leads the majority
to abandon the Supreme Court's well-established two-step due
process test. Majority op., ¶48. In a procedural due process
analysis, the court asks first whether a liberty or property
13
No. 2013AP1724.awb
interest exists which has been interfered with by the State.8
Kentucky Dept. of Corr. V. Thompson, 490 U.S. 454, 460 (1989).
Next, the court examines whether the procedures employed were
constitutionally sufficient. Id.
¶91 The first step is readily met here. As the United
States Supreme Court has determined, procedural due process
protections apply when the defendant's interest is the loss of
liberty as a result of incarceration. See, e.g., Morrissey, 408
U.S. 471, 481-82 (1972); see also Gagnon v. Scarpelli, 411 U.S.
778, 781-82 (1973). The second phase of a bifurcated criminal
trial undeniably results in a loss of liberty. Either Lagrone
will be committed to an institution for mental health treatment
or he will be sent to prison.
¶92 In its conclusory treatment of the second step, the
majority errs because it does not analyze whether the procedures
employed were constitutionally sufficient. Although cases
involving parole or probation may have required only a hearing
with the opportunity to testify, not all situations calling for
procedural safeguards require the same procedure. Morrissey,
408 U.S. at 481. The loss of liberty for Lagrone is even
8
With respect to the first step of the analysis, it is
well-established that criminal defendants have a due process
right to testify at a variety of stages during criminal
proceedings. See, e.g., Boardman v. Estelle, 957 F.2d 1523,
1524 (9th Cir. 1992) (sentencing); Ashe v. North Carolina, 586
F.2d 334, 336 (4th Cir. 1978) (sentencing); Gagnon v. Scarpelli,
411 U.S. 778, 782, 786 (1973) (probation revocation); Morrissey
v. Brewer, 408 U.S. 471, 489 (1972) (parole revocation); see
also Rock, 483 U.S. at 51 n.9.
14
No. 2013AP1724.awb
greater than that of a parolee or probationer, because he has
not yet been sentenced or committed. Thus, the procedure that
is appropriate for a parolee or probationer may be not
sufficient for a criminal defendant.
¶93 The majority's analysis fails to recognize that the
consequence of losing at the responsibility phase of a
bifurcated trial is the same as the consequence of losing at the
guilt phase. The stakes are the same——its prison or not prison.
Because the stakes are the same at both the first and second
phase of a bifurcated criminal trial, I conclude that due
process requires the same procedural protection——a right to
testify colloquy——at both phases of the bifurcated criminal
trial.
¶94 Contrary to the majority, I conclude that precedent
mandates more than a "better practice" admonition. Both the
United States Supreme Court and Wisconsin precedent support the
conclusion that there is a fundamental right to testify at the
second phase of a bifurcated criminal trial. A right to testify
colloquy is required in order to ensure that a defendant
knowingly, intelligently and voluntarily waived the fundamental
right to testify. I would reverse the court of appeals and
remand to the circuit court for an evidentiary hearing.
Accordingly, I respectfully dissent.
¶95 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
15
No. 2013AP1724.awb
1