State v. Eddie Lee Anthony

2015 WI 20
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP467-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Eddie Lee Anthony,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 755, 843 N.W.2d 711)
(Ct. App. 2014 – Unpublished)
OPINION FILED: March 3, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 9, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Richard J. Sankovitz
JUSTICES:
CONCURRED: BRADLEY, J., concurs. (Opinion filed).
DISSENTED: ABRAHAMSON, C.J., dissents (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Kimberly L. Alderman and Alderman Law Firm, Madison,
and oral argument by Kimberly L. Alderman.
For the plaintiff-respondent, the cause was argued by
Marguerite M. Moeller, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
2015 WI 20
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP467-CR
(L.C. No. 2010CF4153)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
MAR 3, 2015
Eddie Lee Anthony,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. On August 20, 2010, Eddie Lee
Anthony (Anthony) killed S.J., the mother of his children. The
evidence showed that Anthony beat and stabbed S.J. 45 times with
an ice pick while their children hid in a closet in the next
room. In addition to the puncture wounds, S.J. suffered four
broken ribs, as well as numerous abrasions and contusions,
leading the medical examiner to consider the cause of death
"multiple sharp and blunt force injuries."
¶2 Anthony never denied killing S.J. His theory of the
case was self-defense. To support that theory, Anthony planned
No. 2013AP467-CR
to serve as the sole eyewitness at his jury trial. But that
strategy never came to fruition, as the circuit court1 refused to
allow Anthony's testimony.
¶3 The impetus for the circuit court's decision regarding
Anthony's right to testify involved an unusual situation:
Anthony adamantly insisted that he would inform the jury of his
prior conviction for armed robbery which occurred in 1966.2
Anthony protested that this conviction was wrongful3 and that he
"stayed [in prison] like 12 mother-fucking years for something
[he] didn't do." He argued that he had a right to inform the
jury of this information because he wanted the jury to know "the
truth, the whole truth."
¶4 Needless to say, it is unusual for a defendant on
trial for first-degree intentional homicide to insist on
bringing up a prior felony conviction involving a violent crime.
However, Anthony explained that he wanted the predominantly
white jury in "one of the most racist cities in the country" to
know that he believed his purportedly wrongful conviction from
1966 was racially motivated.4 Apparently, Anthony believed that
1
Milwaukee County, the Honorable Richard J. Sankovitz,
presiding.
2
According to the presentence investigation report (PSI),
Anthony's conviction for armed robbery occurred on January 25,
1967. He was paroled on or about August 29, 1978.
3
No evidence in the record supports Anthony's contention
that his conviction for armed robbery was wrongful.
4
Anthony is an African-American male.
2
No. 2013AP467-CR
the State's charge of first-degree intentional homicide in this
case was also racially motivated, as Anthony insisted that he
killed S.J. in self-defense.
¶5 The circuit court decided that Anthony's proposed
testimony concerning the alleged wrongful conviction was
irrelevant. The circuit court explained the basis for its
ruling multiple times. With each explanation, Anthony became
more agitated, to the point where additional sheriff's deputies
were called into the courtroom (a total of eight were present).
Anthony promised numerous times that, if permitted to testify,
he would disobey the circuit court's evidentiary ruling. He
emphasized at one point, "I'm going to keep saying it. You got
to carry me out of here."
¶6 Anthony gave every indication that his irrelevant
testimony would not stop at the alleged wrongful conviction. He
insisted he would tell the jury "everything I can remember all
the way back to when I was five years old." In fact, he stated
more than once that he wanted to "bring everything out."
¶7 In light of Anthony's conduct, detailed further below,
the circuit court determined that Anthony forfeited his right to
testify at trial. The jury convicted Anthony of first-degree
intentional homicide. He was sentenced to life imprisonment
without the possibility of release under extended supervision.
¶8 The primary issue before the court is a significant
one: did the circuit court violate Anthony's constitutional
right to testify when it determined, over timely defense
objection, that Anthony forfeited his right by exhibiting
3
No. 2013AP467-CR
stubborn and defiant conduct that threatened both the fairness
and reliability of the criminal trial process as well as the
preservation of dignity, order, and decorum in the courtroom?
¶9 The secondary issue that this case presents is one
that we have recently addressed: is a violation of the right to
testify subject to harmless error analysis?
¶10 Because the circuit court's forfeiture determination
was not arbitrary or disproportionate to the purposes it was
designed to serve,5 we hold that the circuit court did not err in
denying Anthony the right to testify. Anthony forfeited his
right to testify by displaying stubborn and defiant conduct that
presented a serious threat to both the fairness and reliability
of the criminal trial process and the preservation of dignity,
order, and decorum in the courtroom.
¶11 Although we conclude that the circuit court did not
err in refusing to allow Anthony's testimony, we further hold
that, even if we assumed error, such error is subject to
harmless error analysis. Given the overwhelming evidence of
Anthony's guilt, the assumed error was harmless beyond a
reasonable doubt.
¶12 Therefore, we affirm the decision of the court of
appeals and uphold Anthony's conviction.
I. Background
5
See Rock v. Arkansas, 483 U.S. 44, 55-56 (1987) (stating
that the right to testify is subject to reasonable limitations
which are not "arbitrary or disproportionate to the purposes
they are designed to serve.").
4
No. 2013AP467-CR
A. Facts6
¶13 On the night of August 20, 2010, Anthony and S.J.
argued at their home. Anthony had accused S.J. of having an
affair. Their argument spanned the course of approximately one
hour and a half, taking place both inside and outside their
home.
¶14 Multiple people witnessed the argument. One witness,
L.J., S.J.'s 17 year-old daughter, recounted most of the
incident leading to her mother's death. L.J. testified that she
overheard Anthony tell S.J. that if she (S.J.) left the house he
would kill her. At the time, Anthony was holding an ice pick in
his hand.
¶15 Despite Anthony's threat, S.J. left the house and went
for a walk. Anthony tailed her with the ice pick. L.J.
followed Anthony and S.J. to a neighborhood park, where she
witnessed the couple continuing their argument. Anthony and
S.J. eventually returned home; L.J. went to a friend's house.
¶16 Roughly 15 minutes later, L.J. received a phone call
from S.J. S.J. was screaming and asked L.J. to hurry home.
When L.J. arrived, the doors were locked and she could hear S.J.
screaming. L.J. called 9-1-1. Anthony then exited the home and
told L.J. that her mother did not want her to call the police.
He said that S.J. would come outside in 10 to 15 minutes.
6
The following facts are taken from witness testimony at
trial.
5
No. 2013AP467-CR
¶17 Once Anthony drove away, L.J. kicked in the front door
and found her mother dead in an upstairs room.
¶18 Neighbors Sandra Rasco and Tiera Patterson Hogans
corroborated much of L.J.'s testimony. They also testified that
S.J. told them that Anthony had held an ice pick to her throat
and threatened to take her to the woods and kill her. That
threat occurred just two days prior to S.J.'s death.
¶19 Three witnesses were inside S.J. and Anthony's home
at the culmination of the argument. R.J. is the daughter of
S.J. and Anthony. She saw Anthony enter S.J.'s room with an ice
pick. At the time, R.J. was hiding in a closet in another room
with her two sisters, M.J. and A.J. R.J. heard S.J. yell "stop,
please stop" and "I'm sorry, I'm sorry."
¶20 After fleeing the scene, Anthony visited Janet
Mayfield, the mother of his teenage son. He told Mayfield that
he stabbed S.J. "forty to fifty times." He never mentioned
self-defense. He explained that he believed S.J. was having an
affair and that Rasco had something to do with it. He asked
Mayfield for a gun and money. He stated that he was going to
return to his home to kill Rasco and the man that he suspected
of having an affair with S.J.
¶21 The medical examiner, Christopher Poulos, testified
that S.J. suffered 45 "sharp force injuries" involving the head,
chest, abdomen, arms, hands, and leg. Poulos opined that seven
6
No. 2013AP467-CR
of these wounds could be considered "defensive puncture wounds."7
Poulos testified to a reasonable degree of medical certainty
that the 45 "sharp force injuries" could have been caused by an
ice pick.
¶22 S.J. also sustained numerous "blunt force trauma
wounds." These included a contusion of the head, multiple
abrasions and contusions of the torso, and four broken ribs.
¶23 However, the single most lethal injury, according to
Poulos, was a three to four inch puncture wound to S.J.'s aorta.
B. Procedural History
¶24 Anthony was arrested in Bradley, Illinois, after a
highway police chase. The State charged Anthony with one count
of first-degree intentional homicide, contrary to Wis. Stat.
§ 940.01(1)(a).8 Anthony entered a not guilty plea and went to
trial.
¶25 At trial, the State presented the evidence detailed
above. After the State rested, the circuit court asked
Anthony's counsel whether Anthony wanted to testify. Counsel
responded that Anthony wished to do so.
7
Poulos defined "defensive puncture wounds" as those that
"one describes of the hands or forearms of someone who will be
in a position to try to ward off a blow."
8
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated. Wis. Stat.
§ 940.01(1)(a) provides that "whoever causes the death of
another human being with intent to kill that person or another
is guilty of a Class A felony."
7
No. 2013AP467-CR
¶26 The circuit court then addressed the matter of
Anthony's prior convictions relevant for impeachment purposes.9
Based on a pretrial ruling,10 the circuit court instructed
Anthony to answer "two" if asked how many prior convictions he
possessed.11 After some explanation, Anthony stated that he
understood.
¶27 However, Anthony then asked whether he had a right to
"open the door" and "bring in all [his] convictions all the way
back to 1966." He explained:
I'm thinking now it might be to my benefit to show
that in my mind if I go back all the way to 1966——
because like I say [] I don't care what nobody do
think, but in 1966 I was convicted of an armed robbery
of a white man. I was only 19 and I was innocent. I
stayed like 12 mother-fucking years for something I
didn't do. I'm going to tell it to the jury.
¶28 The circuit court ruled that such testimony was
irrelevant to the charge of first-degree intentional homicide,
9
Wisconsin Stat. § 906.09(1) provides that "[f]or the
purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime or adjudicated
delinquent is admissible. . . ." However, under Wis. Stat.
§ 906.09(2), such evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice."
10
Milwaukee County, the Honorable Kevin E. Martens,
presiding.
11
At the pretrial hearing, the State argued that four of
Anthony's prior convictions were relevant for impeachment
purposes. Those convictions dated back as far as 1996.
However, the circuit court determined that only two of the four
were relevant: two convictions for bail jumping in violation of
Wis. Stat. 946.49(1)(a). Those convictions occurred in 2003.
8
No. 2013AP467-CR
to which Anthony responded "I'll bring it up. I have a right."
The circuit court explained that the alleged wrongful conviction
could not help the jury decide whether Anthony committed the
charge he currently faced. Anthony retorted that he wanted the
jury to "know the truth, the whole truth." In the midst of this
discussion, Anthony's reasoning became clearer:
I know when I got convicted of [] the armed robbery,
do you understand, [I had] an all white jury [and] now
I got eleven white people on the jury. This is 2011.
That happened do you understand 40 some years ago
[and] . . . Milwaukee [is] one of the most racist []
cities in the country, and the jury [is] going to feel
what I say. If they don't feel it I'll be glad to die
in prison.
¶29 The circuit court asked Anthony to "take a deep breath
and calm down." The circuit court explained that if Anthony
testified about the alleged wrongful conviction he would be cut
off. Anthony interrupted:
Cut me off. [The jury is the] judge of the facts.
That's a fact that happened that's true. I'm going to
keep saying it. You got to carry me out of here. I'm
going to say it, your Honor. . . .
The following exchange ensued:
THE COURT: We're kind of running out of time here. I
just want to be clear with you. If you respect me
you'll respect this. If you go into detail about [the
alleged wrongful conviction] I'm directing you to stop
talking and if you don't stop talking I will take you
off the stand, bring you back in the bullpen.
THE DEFENDANT: Okay, all right.
THE COURT: That means that the rest of your story will
not be told to the jury. You'll be in direct violation
of my direction to you not to talk about the armed
robbery. If you go into that that's the end of your
9
No. 2013AP467-CR
testimony. I'll find you've blatantly violated my rule
to you and they will take you off the stand. That will
be the end of it.
THE DEFENDANT: Okay. We'll do that, whatever,
whatever.
THE COURT: Mr. Anthony, I'm talking.
THE DEFENDANT: I'm sorry, I'm sorry.
THE COURT: You're promising me right now you're going
to break my rule?
THE DEFENDANT: I promise you right now I want the jury
to hear the facts because you said the jury is the
judge of the facts, you are the judge of the law, and
Anpu Aungk.12 I know this for a fact. If you're as
honorable as you appear to be to me when you think
about all the things that have happened to people like
me in this country you cannot deny what I'm about to
say. . . .
¶30 After Anthony engaged in a brief discussion with
counsel, the circuit court asked whether he would agree not to
talk about the alleged wrongful conviction. Anthony responded
that he could not avoid it. The circuit court ruled that
Anthony could no longer testify:
THE COURT: I could put you on the stand but if you
went into that, I try to cut off that line of
questioning I'd have a difficult situation for two
reasons.
THE DEFENDANT: I understand.
THE COURT: The difficulties would be visited on your
head. First of all the jury would hear the part about
the armed robbery but not all the rest of the story
and so they might think oh, this is the guy who's not
12
Anthony described "Anpu Aungk" as "my Egyptian protector,
the high priest."
10
No. 2013AP467-CR
only accused of killing [S.J.] but he's also an armed
robber and they wouldn't get the rest of the facts.
That's one problem. I want to avoid that.
The other problem is this: You're going to be shackled
to the witness stand. I can't easily remove you from
the courtroom. I'll have to remove the jury from the
courtroom instead, and removing the jury from the
courtroom is not something I can do effortlessly or
quietly or without seeing that you would be making a
ruckus on the stand. When I say "ruckus" what I'm
referring to is the way that you were very, you know,
very animated [in the way you were] talking before. I
don't want you to look worse in the eyes of the jury
because of the way you're behaving on the stand, so if
you're promising me right now that you're going to
talk about this matter that I've excluded I won't let
you take the stand. I don't want to make this worse
for yourself than it is already.
¶31 Anthony's counsel objected and made an offer of proof
as to Anthony's anticipated trial testimony. Anthony would have
testified that he killed S.J. in self-defense. He would have
explained that a physical altercation between himself and S.J.
ensued and that he believed S.J. had picked up a knife. At that
point, Anthony would testify, he used the ice pick to defend
himself.
¶32 Anthony also would have testified that he stabbed S.J.
so many times because he did not realize or understand the
threat had been terminated. Regarding Anthony's decision to
flee the scene of the crime, he would have explained that he had
a heightened fear of police due to past experiences in both
Wisconsin and Illinois.
¶33 The circuit court ensured that Anthony understood he
would not be able to testify about his self-defense theory if he
insisted on disobeying the circuit court's evidentiary ruling.
11
No. 2013AP467-CR
The circuit court once again asked whether Anthony intended to
break its rule, to which Anthony responded "Your Honor, I want
the jury——I want the jury to know everything I can remember all
the way back to when I was five years old."
¶34 The circuit court provided Anthony with two more
opportunities to change his mind, but to no avail. In the midst
of the discussion, the circuit court further expounded the basis
for its ruling:
THE COURT: This is not out of respect for me. I'm not
making an arbitrary ruling making people follow just
for my pleasure. I have this rule because this jury
has a difficult decision to make. I don't want it made
more difficult by having to consider matters which
don't help their decision, and your difficult
experience in Illinois as a younger man doesn't help
them make their decision today. It might in your mind
inject some sympathy into the jury for you but they're
explicitly told they can't decide the case based on
sympathy. They can't have sympathy for [S.J.], they
can't have sympathy for you. They have to decide what
the facts are without regard to sympathy.
. . .
If it was a simple balancing test, if somebody told me
that they were intentionally going to break one of the
rules that we set for the court and it carried only a
little bit of prejudice and there was an awful lot of
probative value they would otherwise have in their
testimony, if it was just a balancing test we would
apply, [it would] give a person carte blanche to break
the court's rules, so [he or she would] break it every
time. There's nothing a court could do to enforce
those rules. While at this point it seems like there's
nothing that serious about Mr. Anthony telling his
sorry tale about what happened in the sixties we don't
know for sure whether that is something that would
make a difference to this jury that might [] end this
very carefully [] constructed process we have of
getting the truth which is why I've said this can't
12
No. 2013AP467-CR
come in. As a consequence if Mr. Anthony tried to get
it in he's forfeited his right to testify.13
As a result of the circuit court's ruling, Anthony was unable to
offer any evidence of self-defense.
¶35 On September 15, 2011, the jury found Anthony guilty
of first-degree intentional homicide. On October 28, 2011, the
circuit court sentenced Anthony to life imprisonment without
eligibility for release under extended supervision.14 The
circuit court entered a judgment of conviction on November 1,
2011.
¶36 On October 16, 2012, Anthony filed a post-conviction
motion for a new trial on the basis that he was denied the
effective assistance of counsel. Anthony contended in part that
his trial counsel was ineffective for failing to argue that
Anthony's right to testify was absolute, subject only to telling
the truth.
13
The discussion concerning Anthony's right to testify
occurred outside the presence of the jury. At the conclusion of
the discussion, a deputy from the Milwaukee County Sheriff's
Office requested that Anthony wear a stun belt. The circuit
court was concerned "not about the timing of the stun belt but
about the fact the jury's sitting now for an hour and 15 minutes
without anything going on." Given that concern and the presence
of eight sheriff's deputies in the courtroom, the circuit court
declined to order Anthony to wear the stun belt. However, the
circuit court did note that Anthony was "speaking very
forcefully" with a "good deal of anger in his voice."
14
At the sentencing hearing, the circuit court noted
Anthony's evident inability to control his anger. The circuit
court explained: "You're sitting there in a wheelchair with 1,
2, 3, 4, 5 extra deputies because of that [one] incident in my
court where you couldn't contain your rage, and that's what I'm
concerned about."
13
No. 2013AP467-CR
¶37 The circuit court denied Anthony's post-conviction
motion in a written decision dated February 5, 2013. The
circuit court reasoned that Anthony was not prejudiced15 by his
trial counsel's failure to argue the absolute nature of his
right to testify because it would have rejected that argument
anyway. It noted that the right to testify is subject to
reasonable limitations, such as procedural and evidentiary rules
that control the presentation of evidence.
¶38 The circuit court also reasoned that the right to
testify can be limited in order to preserve dignity, order, and
decorum in the courtroom, citing to Illinois v. Allen, 397 U.S.
337 (1970), for support. In Allen, the United States Supreme
Court held that a criminal defendant may forfeit his or her
constitutional right to be present at trial through misconduct.
Illinois v. Allen, 397 U.S. 337, 343 (1970).
¶39 Relying in part on Allen to justify its decision
concerning forfeiture, the circuit court recounted Anthony's
demeanor at trial, described above. The circuit court
referenced additional factual findings: "I recall how enraged he
was, how tensely coiled he became the more he insisted on
15
To succeed on a claim for ineffective assistance of
counsel, a defendant must demonstrate both that counsel's
performance was deficient and that it prejudiced the defense.
State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d
695 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To prove prejudice, a defendant must show that "'there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'" Id., ¶37 (quoting Strickland, 466 U.S. at 694).
14
No. 2013AP467-CR
telling the jury about the 1966 conviction, and how close he
seemed to a breaking point." The circuit court explained, "I
did not state these additional observations in so many words at
the time. I was hoping not to provoke another outburst."
¶40 In light of Anthony's insistence on disregarding the
circuit court's evidentiary ruling as well as his angry
demeanor, the circuit court held that Anthony had forfeited his
right to testify. Consequently, the circuit court reasoned that
Anthony could not show prejudice for purposes of his claim for
ineffective assistance.
¶41 The court of appeals affirmed.16 The court of appeals
did not decide whether the circuit court erred in its forfeiture
determination. Rather, it performed a harmless error analysis
and concluded that any error on the part of the circuit court
was harmless in light of the overwhelming evidence of Anthony's
guilt.
¶42 We granted Anthony's petition for review.
II. Standard of Review
¶43 We are asked to determine whether Anthony's
constitutional right to testify was violated. "Whether an
individual is denied a constitutional right is a question of
constitutional fact that this court reviews independently as a
question of law." State v. Cummings, 199 Wis. 2d 721, 748, 546
N.W.2d 406 (1996). We accept the circuit court's findings of
16
State v. Anthony, No. 2013AP467-CR, unpublished order
(Wis. Ct. App. Jan. 14, 2014).
15
No. 2013AP467-CR
evidentiary or historical fact unless they are clearly
erroneous. State v. Ndina, 2009 WI 21, ¶45, 315 Wis. 2d 653,
761 N.W.2d 612. We apply "constitutional principles to those
evidentiary or historical facts independently of the circuit
court and court of appeals but benefitting from those courts'
analyses." Id.
¶44 We are also asked to decide whether a violation of a
defendant's right to testify is subject to harmless error
analysis. "Whether a particular error is structural and
therefore not subject to a harmless error review is a question
of law for our independent review." State v. Nelson, 2014 WI
70, ¶18, 355 Wis. 2d 722, 849 N.W.2d 317. Whether an error is
harmless is also a question of law for our independent review.
Id.
III. Discussion
A. Right to Testify
¶45 Under the common law rule, criminal defendants were
prohibited from testifying on their own behalf at trial.
Ferguson v. Georgia, 365 U.S. 570, 573-74 (1961). They were
deemed incompetent to do so, the theory being that their
testimony was self-serving and therefore untrustworthy. Id.
However, beginning in 1864, states began to enact general
competency statutes for criminal defendants, and the United
States Congress followed suit in 1878. Id. at 577. Those laws
helped serve the presumption of innocence that attaches to
criminal prosecutions. See id. at 580-81 ("Experience under the
American competency statutes was to change the minds of many who
16
No. 2013AP467-CR
had opposed them. It was seen that the shutting out of [a
defendant's testimony] could be positively hurtful to the
accused, and that innocence was in fact aided, not prejudiced,
by the opportunity of the accused to testify under oath.").
¶46 Over a century later, the United States Supreme Court
explicitly recognized that a defendant in a criminal case has a
fundamental constitutional right to testify in his or her own
defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987); See also
United States v. Dunnigan, 507 U.S. 87, 96 (1993). That right
stems from several provisions of the Constitution:
the Fourteenth Amendment, which protects a defendant's
due process right to be heard and offer testimony; the
Compulsory Process Clause of the Sixth Amendment,
which protects a defendant's right to call witnesses
in her favor; and the Fifth Amendment, which protects
a defendant's right against compelled testimony unless
he chooses to speak in the unfettered exercise of his
own will.
Nelson, 355 Wis. 2d. 722, ¶19 (internal quotation marks
omitted).
¶47 It has been recognized that the right to testify is
grounded in personal autonomy and may not be waived by counsel.
See Jones v. Barnes, 463 U.S. 745, 751 (1983). In Wisconsin, we
require that a circuit court "conduct a colloquy with the
defendant in order to ensure that the defendant is knowingly and
voluntarily waiving his or her right to testify." State v.
Weed, 2003 WI 85, ¶40, 263 Wis. 2d 434, 666 N.W.2d 485. Stated
differently, the right to testify cannot be lost, that is to say
17
No. 2013AP467-CR
forfeited, by a defendant's silence. Nelson, 355 Wis. 2d 722,
¶20.
¶48 Although the right to testify is a fundamental
constitutional right grounded in personal autonomy, it is not
absolute. For example, there is no constitutional right to
commit perjury. State v. McDowell, 2004 WI 70, ¶34, 272 Wis. 2d
488, 681 N.W.2d 500 (quoting Nix v. Whiteside, 475 U.S. 157, 173
(1986)). There is also no constitutional right to present
irrelevant evidence. State v. Robinson, 146 Wis. 2d 315, 332,
431 N.W.2d 165 (1988). Moreover, a criminal defendant's right
to present relevant testimony is subject to reasonable
restrictions. Rock, 483 U.S. at 55-56.
¶49 In Rock, the United States Supreme Court considered
whether Arkansas' per se rule prohibiting the admission of
hypnotically refreshed testimony violated the petitioner's right
to testify. Id. at 45. Arkansas' rule was designed to ensure
that only reliable evidence be admitted at trial. Id. at 56.
Because Arkansas considered hypnotically refreshed testimony per
se unreliable, circuit courts had no discretion to admit such
testimony, even if the circumstances of a particular case
established the trustworthiness of the evidence. Id. at 57
n.12.
¶50 The Court in Rock recognized that the right to present
relevant testimony is not limitless and "'may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process.'" Id. at 55 (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)). For example,
18
No. 2013AP467-CR
"[n]umerous state procedural and evidentiary rules control the
presentation of evidence and do not offend the defendant's right
to testify." Id. at 55 n.11. However, such limitations on the
right to testify "may not be arbitrary or disproportionate to
the purposes they are designed to serve." Id. at 56.
¶51 Having determined that "[w]holesale inadmissibility of
a defendant's testimony is an arbitrary restriction on the right
to testify in the absence of clear evidence by the State
repudiating the validity of all posthypnosis recollections," Id.
at 61, the Court in Rock held that Arkansas' per se rule
violated the defendant's right to testify. Id. at 62. Central
to the Court's reasoning was the fact that the per se rule
impeded the circuit court's ability to control the presentation
of evidence so as to effectuate the ascertainment of truth. See
id. at 56-62.
¶52 The takeaway from Rock is a "methodology for
reviewing a decision denying a defendant's request to testify."
Arredondo v. Pollard, 498 F. Supp. 2d 1113, 1126 (E.D. Wis.
2007). "The reviewing court asks whether the reasons given for
the denial are sufficiently persuasive to justify depriving the
defendant of his fundamental constitutional right to testify."
Id.
B. Forfeiture by Conduct
¶53 Prior to reviewing the circuit court's decision to
deny Anthony's request to testify, we must address a threshold
issue in this case: whether a criminal defendant may forfeit his
or her right to testify through conduct incompatible with the
19
No. 2013AP467-CR
assertion of the right. Neither the United States Supreme Court
nor this court has addressed the issue.
¶54 "We have recognized two distinct ways in which a
defendant may give up his rights: waiver and forfeiture." State
v. Pinno, 2014 WI 74, ¶56, 356 Wis. 2d 106, 850 N.W.2d 207.
Waiver "'is the intentional relinquishment or abandonment of a
known right.'" Ndina, 315 Wis. 2d 653, ¶29 (quoting United
States v. Olano, 507 U.S. 725, 733 (1993)). "[W]aiver typically
applies to those rights so important to the administration of a
fair trial that mere inaction on the part of a litigant is not
sufficient to demonstrate that the party intended to forgo the
right." State v. Soto, 2012 WI 93, ¶37, 343 Wis. 2d 43, 817
N.W.2d 848.
¶55 Forfeiture, on the other hand, often involves "'the
failure to make the timely assertion of a right.'" Ndina, 315
Wis. 2d 653, ¶29 (quoting Olano, 507 U.S. at 733). "Rights that
are subject to forfeiture are typically those whose
relinquishment will not necessarily deprive a party of a fair
trial, and whose protection is best left to the immediacy of the
trial, such as when a party fails to raise an evidentiary
objection." Soto, 343 Wis. 2d 43, ¶36. However, there is a
second aspect to forfeiture: "doing something incompatible with
the assertion of a right. . . ." State v. Vaughn, 2012 WI App
129, ¶21, 344 Wis. 2d 764, 823 N.W.2d 543 (citing Allen, 397
U.S. at 343).
¶56 As previously noted, we have held that the right to
testify is subject to waiver, not forfeiture, in so far as a
20
No. 2013AP467-CR
defendant's inaction in asserting the right is concerned. Weed,
263 Wis. 2d 434, ¶¶39-40. We now conclude that the right to
testify may, in appropriate cases, be subject to forfeiture
where conduct incompatible with the assertion of the right is at
issue.
¶57 Case law supports our position. In Allen, the issue
was whether Allen forfeited his constitutional right to be
present at trial by engaging "in speech and conduct which [was]
so noisy, disorderly, and disruptive that it [was] exceedingly
difficult or wholly impossible to carry on the trial." Allen,
397 U.S. at 338. At trial, Allen had requested to conduct his
own defense. Id. at 339. During voir dire, Allen argued with
the judge "in a most abusive and disrespectful manner." Id. He
later threatened the judge, tore up his appointed counsel's
legal files, and threw papers on the floor. Id. at 340.
Despite warning, Allen did not reform his conduct, leading the
circuit court to remove him from the courtroom on two separate
occasions. Id. at 340-41.
¶58 The United States Supreme Court rejected the notion
that Allen's right to be present "was so 'absolute' that, no
matter how unruly or disruptive [Allen's] conduct might be, he
could never be held to have lost that right so long as he
continued to insist upon it, as Allen clearly did." Id. at 342.
The Court held:
[W]e explicitly hold today that a defendant can lose
his right to be present at trial if, after he has been
warned by the judge that he will be removed if he
continues his disruptive behavior, he nevertheless
21
No. 2013AP467-CR
insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court
that his trial cannot be carried on with him in the
courtroom. Once lost, the right to be present can, of
course, be reclaimed as soon as the defendant is
willing to conduct himself consistently with the
decorum and respect inherent in the concept of courts
and judicial proceedings.
It is essential to the proper administration of
criminal justice that dignity, order, and decorum be
the hallmarks of all court proceedings in our country.
The flagrant disregard in the courtroom of elementary
standards of proper conduct should not and cannot be
tolerated. We believe trial judges confronted with
disruptive, contumacious, stubbornly defiant
defendants must be given sufficient discretion to meet
the circumstances of each case. No one formula for
maintaining appropriate courtroom atmosphere will be
best in all situations.
Id. at 343. Thus, Allen stands for the proposition that a
defendant may forfeit a fundamental constitutional right through
conduct incompatible with the assertion of the right.
¶59 In our view, the rationale of Allen logically extends
to the context of the right to testify, given that a corollary
to removal may be denial of that right. We are not alone in
this opinion. See, e.g., United States v. Ives, 504 F.2d 935,
941 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944
(1975), opinion reinstated in relevant part, 547 F.2d 1100 (9th
Cir. 1976) (holding that a defendant may forfeit the privilege
to testify through conduct); Douglas v. State, 214 P.3d 312, 322
(Alaska 2009) (applying the Allen standards to determine whether
the defendant forfeited his right to testify in person through
misconduct); State v. Chapple, 36 P.3d 1025, 1033-34 (Wash.
2001) (relying on Allen and Ives to determine whether the
22
No. 2013AP467-CR
defendant lost his right to testify by way of his conduct). We
agree with the reasoning of the United States Court of Appeals
for the Ninth Circuit:
It is evident that the conduct of a defendant in the
courtroom can become so inconsistent with the
necessary decorum for effective administration of
justice that reasonable restraints are necessary. It
is even more evident that such conduct cannot be
allowed when the defendant takes center stage on the
witness stand. He has no more liberty and freedom to
testify in a way degrading to the judicial system than
he has to rob a bank. . . .
Ives, 504 F.2d at 941.
¶60 Although the United States Supreme Court has not
expressly stated that a defendant may forfeit the right to
testify through conduct, it seems probable that it would reach
such a conclusion in light of Allen and its indication in Rock
that the right to testify is subject to legitimate interests in
the criminal trial process. Surely, the preservation of
dignity, order, and decorum in the courtroom constitutes a
legitimate interest in the criminal trial process that may
outweigh a defendant's right to testify in certain
circumstances.
¶61 While we have not addressed the forfeiture by conduct
issue in the context of the right to testify, we have held that
a criminal defendant may forfeit his or her constitutional right
to counsel through manipulative or disruptive conduct.
Cummings, 199 Wis. 2d at 752-56; accord United States v.
Leggett, 162 F.3d 237, 250 (3d Cir. 1998); United States v.
McLeod, 53 F.3d 322, 324-25 (11th Cir. 1995); United States v.
23
No. 2013AP467-CR
Bauer, 956 F.2d 693, 695 (7th Cir. 1992). In Cummings, the
defendant repeatedly refused to cooperate with various court-
appointed attorneys, constantly complained about the attorneys'
performance, and made it impossible for an attorney to
effectively represent him. Cummings, 199 Wis. 2d at 753-54. We
held that "there may be situations, such as the one before us,
where a circuit court must have the ability to find that a
defendant has forfeited his right to counsel." Id. at 756.
¶62 In a footnote to Cummings, we recommended that "trial
courts in the future, when faced with a recalcitrant defendant,
follow the first four steps outlined in the dissent before
determining that a defendant has forfeited his or her right to
counsel." Id. at 756 n.18. Those four steps, designed to
ensure that a defendant understands the consequences of his or
her actions, are:
(1) explicit warnings that, if the defendant persists
in “X” [specific conduct], the court will find that
the right to counsel has been forfeited and will
require the defendant to proceed to trial pro se; (2)
a colloquy indicating that the defendant has been made
aware of the difficulties and dangers inherent in
self-representation; (3) a clear ruling when the court
deems the right to counsel to have been forfeited;
[and] (4) factual findings to support the court's
ruling. . . .
Id. at 764 (Geske, J., dissenting). Thus, Cummings not only
demonstrates that a defendant may forfeit a fundamental
constitutional right through conduct incompatible with the
assertion of the right, it provides guidance to circuit courts
faced with making such a determination.
24
No. 2013AP467-CR
¶63 Since Cummings, the court of appeals has held that
criminal defendants may, through their conduct, forfeit their
right to an on-the-record colloquy designed to ensure that their
decision not to testify is a knowing and voluntary one. Vaughn,
344 Wis. 2d 764, ¶26. Citing Allen, 397 U.S. at 343, the court
of appeals explained:
As we have seen, however, a defendant in a criminal
case may lose fundamental rights (such as the right to
appear at the trial and confront the accusers) when
the defendant forfeits those rights by interfering
with the ability of the trial court to protect those
rights. . . . By refusing to come to court so the
trial court could personally explain what Weed
requires must be explained, Vaughn made it, as a
practical matter consistent with safety, impossible
for the trial court to explain his right to testify,
and determine whether his decision to not testify was,
in Weed's phrase, "knowing, intelligent, and
voluntary."
Id. (internal citations omitted).
¶64 The foregoing case law demonstrates that forfeiture by
conduct is not a novel concept, even where fundamental
constitutional rights are concerned. In light of that case law,
and in light of the United States Supreme Court's declaration
that the right to testify may "'bow to accommodate other
legitimate interests in the criminal trial process,'" Rock, 483
U.S. at 55 (quoting Chambers, 410 U.S. at 295), we conclude that
a criminal defendant may forfeit his or her right to testify
through conduct incompatible with the assertion of the right in
appropriate cases. However, we stress that a circuit court's
determination on forfeiture must be guided by Rock's balancing
test. Thus, a forfeiture determination may not be arbitrary or
25
No. 2013AP467-CR
disproportionate to the purposes it is designed to serve. Rock,
483 U.S. at 56. Stated differently, a complete denial of the
right to testify must be reasonable under the circumstances of
the case.
C. Anthony Forfeited his Right to Testify
¶65 Having established that a criminal defendant may
forfeit his or her right to testify through conduct incompatible
with the assertion of the right, we proceed to consider whether
Anthony forfeited his right to testify in his own defense.
¶66 Anthony argues that the circuit court erred in its
forfeiture determination. He submits that the circuit court
went where no court has gone before: denying a criminal
defendant the right to testify where his conduct did not first
warrant removal from the courtroom. Painting this case
exclusively as a "disruption case" under Allen, Anthony contends
that there is no precedent for stripping a defendant "of his
right to testify based on 'disruptive' behavior when he was
never so disruptive as to render it impossible to carry on the
trial in his presence." In his view, the circuit court's
decision in this case amounted to nothing more than a protective
measure based on the circuit court's fear that Anthony may
become disruptive. Anthony maintains that there is no basis in
existing law for such a preemptive application of Allen.
¶67 Anthony recognizes that Rock permits reasonable
limitations on the right to testify where legitimate interests
in the criminal trial process are concerned. However, he argues
that the Rock balancing test weighs in his favor. In asserting
26
No. 2013AP467-CR
that the circuit court's forfeiture determination was arbitrary
or disproportionate to the purposes it was designed to serve,
Anthony questions whether legitimate interests in the criminal
trial process were really at issue. As to the preservation of
courtroom decorum, Anthony contends that "there is no authority
to support the proposition that [the right to testify] can be
circumscribed by principles of decorum." Regarding the interest
in maintaining order in the courtroom, Anthony argues that the
circuit court's concern for the jury's safety may have arisen
post hoc.17 As for the circuit court's interest in controlling
the presentation of evidence, Anthony submits that he never
"indicated that he would testify in anything but a truthful and
relevant manner."
¶68 In sum, according to Anthony, the complete denial of
his right to testify was a "far too severe punishment for [his]
minor disruption and dissent," particularly in light of the fact
that he planned to serve as the sole eyewitness in support of
his self-defense theory.
¶69 The State contends that Anthony forfeited his right to
testify by refusing to comply with the circuit court's
evidentiary ruling and posing a threat to the preservation of
dignity, order, and decorum in the courtroom. The State
disagrees with Anthony's assertion that a circuit court can only
bar a defendant from testifying where his or her conduct
17
Post hoc is defined as "[a]fter this; consequently."
Black's Law Dictionary 4 (7th ed. 1999).
27
No. 2013AP467-CR
warrants removal from the courtroom. According to the State, a
denial of the right to be present at trial is a more extreme
sanction than denial of the right to testify because removal
from the courtroom infringes upon several rights: the right to
confrontation, the right to conduct a defense, and the right to
appear before a jury. Thus, per the State's reasoning, it is
illogical to require the same level of misconduct to justify the
denial of both rights.
¶70 The State acknowledges an absence of case law directly
addressing the issue before the court; however, it contends that
cases dealing with forfeiture of a defendant's right to counsel
through conduct inconsistent with the assertion of the right are
more persuasive than the "disruption" type cases that Anthony
offers. See, e.g., Cummings, 199 Wis. 2d at 752-56; United
States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995)
(recognizing that a defendant can forfeit or "waive by conduct"
his or her right to counsel through dilatory tactics).
Specifically, the State argues "[i]f a defendant can be found to
have forfeited or 'waived by conduct' the right to counsel
without an explicit waiver and absent any violent behavior, it
logically follows that a defendant can also be found to have
forfeited his right to testify without engaging in behavior that
merits removal from the courtroom."
¶71 Recognizing that Rock sets forth the appropriate test
for determining the propriety of a circuit court's decision
concerning forfeiture of the right to testify, the State asserts
that the circuit court's interests in controlling the
28
No. 2013AP467-CR
presentation of the evidence and preserving dignity, order, and
decorum in the courtroom justified the complete denial of
Anthony's right to testify.
¶72 We agree with the State and hold that Anthony
forfeited his right to testify by displaying stubborn and
defiant conduct that presented a serious threat to both the
fairness and reliability of the criminal trial process as well
as the preservation of dignity, order, and decorum in the
courtroom.
¶73 As a preliminary matter, we concur with the State that
a circuit court need not remove a defendant from the courtroom
in order to justify a denial of the right to testify. The cases
that we have cited for the proposition that a defendant may
forfeit a constitutional right through conduct do not
exclusively involve the type of violent and disruptive behavior
that may necessitate removal from the courtroom. See, e.g.,
Cummings, 199 Wis. 2d at 752-56; See also Taylor v. United
States, 414 U.S. 17, 20 (1973) (holding that the defendant
waived or forfeited his constitutional right to be present
through his voluntary absence). Therefore, when determining
whether a defendant forfeited his or her right to testify
through conduct, we believe the appropriate inquiry is to
consider the totality of the circumstances in order to assess
whether the defendant interfered with the circuit court's
ability to protect that right. We reiterate that such an
inquiry must be guided by Rock's balancing test——the forfeiture
determination must not be arbitrary or disproportionate to the
29
No. 2013AP467-CR
purposes it is designed to serve. In other words, a complete
denial of the right to testify must be reasonable under the
circumstances of the case.
¶74 In this case, we recognize two distinct interests that
formed the basis of the circuit court's complete denial of
Anthony's right to testify. Both constitute legitimate
interests in the criminal trial process.
¶75 The first involves the circuit court's ability to
control the presentation of evidence so as to ensure the
fairness and reliability of the criminal trial process. The
primary purpose of a criminal trial is to develop "relevant
facts on which a determination of guilt or innocence can be
made." United States v. Nobles, 422 U.S. 225, 230 (1975); See
also State v. McClaren, 2009 WI 69, ¶5, 318 Wis. 2d 739, 767
N.W.2d 550 ("Ascertainment of the truth is the primary objective
of a trial. . . ."). "Efficiency is a secondary objective of a
trial, but where it can be attained with constitutionally
permitted measures, it is highly desirable." McClaren, 318 Wis.
2d 739, ¶5.
¶76 Under Wis. Stat. § 906.11, circuit courts are charged
with serving these two purposes. The statute provides, in
relevant part:
(1) Control by judge. The judge shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as
to do all of the following:
(a) Make the interrogation and presentation effective
for the ascertainment of the truth.
30
No. 2013AP467-CR
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue
embarrassment.
Wis. Stat. § 906.11(1). We have held that Wis. Stat. § 906.11
enables a circuit court "to try to be certain that a jury is
presented with admissible, reliable evidence and to make
pretrial rulings so that the trial runs smoothly." McClaren,
318 Wis. 2d 739, ¶3. Indeed, the trial process requires as
much:
The adversary process could not function effectively
without adherence to rules of procedure that govern
the orderly presentation of facts and arguments to
provide each party with a fair opportunity to assemble
and submit evidence to contradict or explain the
opponent's case. The trial process would be a shambles
if either party had an absolute right to control the
time and content of his witnesses' testimony.
Taylor v. Illinois, 484 U.S. 400, 410-411 (1988).
¶77 It is clear from our review of the record that
Anthony's proposed testimony likely would have confused or
misled the jury, thereby presenting an obstacle to the
ascertainment of truth. As the circuit court acknowledged, the
jury had "a difficult decision to make," and irrelevant matters
such as Anthony's alleged wrongful conviction; Anthony's status
as an African-American male; Anthony's religious beliefs; and
Anthony's memories "all the way back to when [he] was five years
old" would not have helped the jury make its decision.
¶78 To take but one example, if Anthony had been allowed
to testify about his alleged wrongful conviction, it is possible
that the State would have felt compelled to prove that Anthony's
31
No. 2013AP467-CR
conviction was never overturned and may have been completely
legitimate. In other words, the issue of Anthony's purported
wrongful conviction had the obvious potential to develop into a
trial within a trial, thereby confusing the jury as to the
issues it was required to decide, or worse, misleading the jury
into thinking that it could determine Anthony's guilt or
innocence in this case based on the likelihood that he was
wrongfully convicted of armed robbery in 1966. To further
complicate matters, the trial within a trial likely would have
constituted a needless consumption of time.
¶79 Where, as here, a defendant repeatedly promises to
disobey a circuit court's evidentiary ruling, the effect of
which would seriously threaten the fairness and reliability of
the criminal trial process, we think it fair to say that a
circuit court has a legitimate interest in placing reasonable
limitations on a defendant's right to testify. See Chambers,
410 U.S. at 302 ("In the exercise of this right, the accused, as
is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence."); See
also Holmes v. South Carolina, 547 U.S. 319, 327 (2006) ("While
the Constitution thus prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose or that
are disproportionate to the ends that they are asserted to
promote, well-established rules of evidence permit trial judges
to exclude evidence if its probative value is outweighed by
32
No. 2013AP467-CR
certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.").
¶80 The second distinct interest underlying the circuit
court's forfeiture determination concerned the preservation of
dignity, order, and decorum in the courtroom. In our view, the
record is clear that Anthony posed a serious threat to that
legitimate interest in the criminal trial process as well.
¶81 The circuit court made findings of fact with respect
to Anthony's demeanor at trial, both in its oral decision and
its written decision post-conviction, and we defer to them
unless they are clearly erroneous. Ndina, 315 Wis. 2d 653, ¶45.
The circuit court observed that Anthony was "quite animated"
when insisting to testify to irrelevant matters, i.e., he was
"speaking very forcefully" with "a good deal of anger in his
voice." The circuit court noted how "enraged" and "tensely
coiled" Anthony became and "how close he seemed to a breaking
point."18 Based on Anthony's demeanor, the circuit court
expressed concern that Anthony would cause "a ruckus on the
stand" and pose a threat to the security of the jury.
18
Anthony suggests that these findings of fact, described
in the circuit court's written decision post-conviction, were
the product of a post hoc rationalization for the circuit
court's forfeiture determination. However, we recently
explained that "taking judges at their word is a fundamental
assumption built into our legal system." State v. Robinson,
2014 WI 35, ¶48, 354 Wis. 2d 351, 847 N.W.2d 352. "In the
absence of clear evidence to contrary, we decline to assign
improper motive on the part of the circuit court." Id.
33
No. 2013AP467-CR
¶82 The circuit court's observations are supported by
other portions of the record. For example, the record shows
that Anthony threatened that he would need to be carried out of
the courtroom if he could not testify freely. At some point,
additional sheriff's deputies were called into the courtroom,
bringing the total present to eight. Toward the end of the
circuit court's discussion with Anthony, the sheriff's office
requested that Anthony wear a stun belt for the remainder of the
trial. Also, at Anthony's sentencing, the circuit court noted
the presence of additional sheriff's deputies "because of that
[one] incident in my court where you couldn't contain your rage,
and that's what I'm concerned about."
¶83 Where, as here, a defendant displays such disruptive
conduct, we find it rational to conclude that a circuit court
has a legitimate interest in placing reasonable limitations on
the right to testify.19
¶84 Having identified two legitimate interests that
warranted the imposition of reasonable limitations on Anthony's
right to testify, the question remains whether the circuit
court's complete denial of that right was in fact reasonable
under the circumstances. Stated differently, we consider
19
Contrary to Anthony's assertion, there is case law
supporting the proposition that the right to testify can be
circumscribed by principles of decorum. See, e.g., United
States v. Ives, 504 F.2d 935, 941-46 (9th Cir. 1974), vacated on
other grounds, 421 U.S. 944 (1975), opinion reinstated in
relevant part, 547 F.2d 1100 (9th Cir. 1976).
34
No. 2013AP467-CR
whether the circuit court's forfeiture determination was
arbitrary or disproportionate to the purposes it was designed to
serve.
¶85 The circuit court's complete denial of Anthony's right
to testify was reasonable in light of the totality of the
circumstances in this case. Though we do not wish to diminish
the importance of Anthony's self-defense testimony, which was
certainly relevant to the charged offense, we cannot condone
Anthony's blatant disrespect for the criminal trial process. To
do so would seriously jeopardize a circuit court's ability to
fulfill its constitutionally or legislatively mandated
obligations, including those imposed by Wis. Stat. § 906.11.
¶86 The United States Supreme Court has stated countless
times that adherence to rules of evidence and procedure is
essential to the proper functioning of our criminal trial
process. See, e.g., Chambers, 410 U.S. at 302; Rock, 483 U.S.
at 55 n.11; Taylor, 484 U.S. at 410-411. That numerous rules
controlling the presentation of evidence "do not offend the
defendant's right to testify"20 is a sure indication that a
circuit court's interest in effectuating the ascertainment of
truth is tantamount to the constitutional right to testify.21 By
20
Rock, 483 U.S. at 55 n.11.
21
Indeed, the United States Supreme Court in Rock appeared
most concerned with the fact that the evidentiary rule at issue
stripped the circuit court of its ability to control the
presentation of evidence so as to facilitate the truth-seeking
process. See id., 483 U.S. at 56-62.
35
No. 2013AP467-CR
repeatedly refusing to comply with the circuit court's
instruction not to discuss irrelevant matters before the jury,
Anthony gave the circuit court little choice but to completely
deny his right to testify for fear of compromising the primary
purpose of the criminal trial process.
¶87 In light of this conduct alone, we would be hard
pressed not to conclude that Anthony forfeited his right to
testify. But Anthony's conduct did not stop there. The more
Anthony insisted on disregarding the circuit court's evidentiary
ruling, the more disruptive and enraged he became, to the point
where the circuit court legitimately believed that Anthony posed
a threat to the orderliness of the courtroom, including the
security of the jurors.22 We think the United States Supreme
Court was clear when it stated that such a "flagrant disregard
in the courtroom of elementary standards of proper conduct
should not and cannot be tolerated." Allen, 397 U.S. at 343.
¶88 We are mindful, as was the circuit court, that "courts
must indulge every reasonable presumption against the loss of
constitutional rights. . . ." Id. In its post-conviction
written decision, the circuit court explained that it considered
less restrictive alternatives to forfeiture. For example, it
considered permitting Anthony to provide irrelevant testimony
and later instructing the jury to ignore it. However, it noted
22
The circuit court pointed out in its post-conviction
written decision that the nearest juror sat eight feet away from
the witness stand.
36
No. 2013AP467-CR
that such an approach would "condone disrespect for the court's
rulings." In addition, it might have provoked a disturbance
once Anthony witnessed the circuit court "nullifying his attempt
to sway the jury."
¶89 That Anthony was likely to erupt at the provision of a
limiting instruction is clear from the record; thus, we find it
reasonable to conclude that a limiting instruction would not
have minimized a significant risk presented by Anthony's
testimony. Moreover, while we presume that juries follow
properly given jury instructions, State v. Marinez, 2011 WI 12,
¶41, 331 Wis. 2d 568, 797 N.W.2d 399, we note that a jury
instruction in this case would not have solved a separate
problem created by Anthony's unfettered testimony: a needless
consumption of time.
¶90 The circuit court considered at least one other
alternative to forfeiture. It explained that it could have put
Anthony on the stand and directed his attorney not to broach the
subject of Anthony's prior convictions. However, the circuit
court identified the obvious flaw in that approach. Given
Anthony's determination to testify freely, he likely would have
found a way to raise irrelevant matters on his own, thereby
creating the potential for a substantial disturbance once the
circuit court intervened.
¶91 As the United States Supreme Court explained in Allen,
"[n]o one formula for maintaining the appropriate courtroom
atmosphere will be best in all situations." Id. Indeed, the
Court stressed that "trial judges confronted with disruptive,
37
No. 2013AP467-CR
contumacious, stubbornly defiant defendants must be given
sufficient discretion to meet the circumstances of each case."
Id. We read this statement as a caution against the type of
"Monday-morning quarterbacking" that may arise on appellate
review of these situations.
¶92 Importantly, the Court in Allen upheld the circuit
court's forfeiture determination despite the fact that there
were other coercive measures that could have been used with the
defendant. Id. at 344-46. The Court found significance in the
fact that the defendant was both warned of the potential
consequences of his actions and given the opportunity to
participate at trial if he reformed his conduct. Id. at 346.
¶93 Of course, that is exactly what happened in this case.
The circuit court warned Anthony on several occasions that he
would not be allowed to testify if he continued his misbehavior.
The circuit court also provided Anthony with multiple
opportunities to reform his conduct.
¶94 Under these circumstances, the circuit court was not
required to put Anthony on the stand and wait for the fireworks.
The criminal trial process deserves better.
¶95 Therefore, we conclude that Anthony forfeited his
right to testify by exhibiting stubborn and defiant conduct that
posed a serious threat to the both the fairness and reliability
of the criminal trial process and the preservation of dignity,
order, and decorum in the courtroom.
D. Harmless Error
38
No. 2013AP467-CR
¶96 Although we conclude that there was no error in this
case, we wish to take the opportunity to confirm that a
violation of a criminal defendant's right to testify to relevant
evidence is subject to harmless error analysis. Nelson, 355
Wis. 2d 722, ¶¶32-33.23 Even if we assumed error in this case,
we would conclude that the error was harmless beyond a
reasonable doubt given the overwhelming evidence of Anthony's
guilt.
¶97 Despite our recent decision in Nelson, Anthony
contends that a violation of the right to testify is a
structural error and thus not subject to harmless error analysis
where a defendant wishes to testify about relevant matters. He
argues that our decision in Nelson is confined to situations
where a defendant wishes to testify about irrelevant matters.
Anthony reasons that a violation of a defendant's right to
testify about relevant evidence is a "separate and more
pervasive error than denying a defendant the ability to testify
as to irrelevant matters." According to Anthony, this is
because there is no constitutional right to testify to
irrelevant evidence, United States v. Sheffer, 523 U.S. 303, 308
(1998), whereas there is a constitutional right to testify to
relevant evidence. Rock, 483 U.S. at 55.
23
We note that Nelson has filed a petition for a writ of
certiorari before the United States Supreme Court and that
petition is currently pending review.
39
No. 2013AP467-CR
¶98 Alternatively, Anthony argues that if harmless error
review applies to a violation of a defendant's right to testify
to relevant evidence, any error here was not harmless beyond a
reasonable doubt. Specifically, Anthony submits: "[b]ecause
[he] was prevented from mounting any defense at all against the
State's allegations, it cannot be shown beyond a reasonable
doubt that his testimony could not have presented some jury
question as to whether he intended to kill S.J. or was defending
himself. . . ." To support his position, he maintains that he
would have testified that he killed S.J. in self-defense, as
S.J. was high on crack cocaine on the night in question and
therefore attacked him.24 He also would have testified that he
fled the scene of the crime because he has a special fear of
police.
¶99 The State argues that a violation of the right to
testify is subject to harmless error analysis regardless whether
the excluded testimony is relevant. It points out that there is
no qualifying language in Nelson supporting Anthony's narrow
reading of the decision. The State maintains that "the
relevance or irrelevance of a defendant's proposed testimony
should not affect the threshold determination of whether a
particular constitutional violation amounts to structural error;
logically, it only factors into the harmless-error analysis."
24
S.J.'s purported crack cocaine use on the night in
question was not included in Anthony's offer of proof regarding
his anticipated trial testimony.
40
No. 2013AP467-CR
According to the State, a court can assess the effect that a
wrongful exclusion of relevant evidence has on a trial outcome
just as easily as it can with respect to the wrongful exclusion
of irrelevant evidence.
¶100 Thus, according to the State, harmless error analysis
is appropriate, and any error on the part of the circuit court
in this case was harmless beyond a reasonable doubt given the
overwhelming evidence of Anthony's guilt.
¶101 We agree with the State. First, a violation of a
defendant's right to testify to relevant evidence is subject to
harmless error analysis. In Nelson, we explained without
qualification that "[a]n error denying the defendant of the
right to testify on his or her own behalf bears the hallmark of
a trial error." Nelson, 355 Wis. 2d 722, ¶32. Unlike
structural errors,25 trial errors "'occur[] during presentation
of the case to the jury and their effect may be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable
doubt.'" Id., ¶30 (quoting United States v. Gonzalez-Lopez, 548
U.S. 140, 148 (2006)). The fact that a defendant's testimony
may be significant to the issues in the case does not mean that
25
Structural errors "'defy analysis by harmless-error
standards because they affec[t] the framework within which the
trial proceeds, and are not simply . . . error[s] in the trial
process itself." State v. Nelson, 2014 WI 70, ¶30, 355 Wis. 2d
722, 849 N.W.2d 317 (quoting Arizona v. Fulminante, 499 U.S.
279, 309-10 (1991)).
41
No. 2013AP467-CR
its absence is incapable of assessment. Id., ¶33. Thus, we
made clear in Nelson that a violation of the right to testify is
subject to harmless error analysis irrespective of the
testimony's relevance.
¶102 Second, even if we assumed that the circuit court
erred in denying Anthony the right to testify, we would conclude
that the error was harmless beyond a reasonable doubt. In
Nelson, we explained that a reviewing court should consider the
following factors in determining whether a denial of the right
to testify was harmless beyond a reasonable doubt:
(1) the importance of the defendant's testimony to the
defense case; (2) the cumulative nature of the
testimony; (3) the presence or absence of evidence
corroborating or contradicting the defendant on
material points; and (4) the overall strength of the
prosecution's case.
Id., ¶46.
¶103 The first two factors weigh in Anthony's favor, as it
is clear that Anthony's self-defense testimony was important to
his defense, and no other witness could have provided that
evidence. As a result, Anthony had no way to rebut the State's
allegation that he intentionally killed S.J.
¶104 However, the latter two factors clearly favor the
State, and, in our view, tip the scales in support of harmless
error. As we demonstrated at the outset of this decision, the
evidence of Anthony's guilt was substantial. The majority of
evidence presented at trial contradicted Anthony's self-defense
theory, thereby contributing to the overall strength of the
State's case. The gruesome nature and extent of S.J.'s injuries
42
No. 2013AP467-CR
completely undermine Anthony's claim of self-defense. Moreover,
at least three witnesses testified that Anthony threatened to
kill S.J. with an ice pick, either on the day in question or two
days earlier. In addition, one witness testified that Anthony
admitted to stabbing S.J. "forty to fifty times" because he
thought S.J. was cheating on him, not because he was acting in
self-defense. The evidence also showed that S.J. was a sickly
woman who suffered from rheumatoid arthritis, particularly in
the hands, and that she was likely incapable of holding a knife.
¶105 Given the evidence before us, we are satisfied that
any assumed error on the part of the circuit court was harmless
beyond a reasonable doubt.
IV. Conclusion
¶106 Because the circuit court's forfeiture determination
was not arbitrary or disproportionate to the purposes it was
designed to serve, we hold that the circuit court did not err
in denying Anthony the right to testify. Anthony forfeited his
right to testify by displaying stubborn and defiant conduct that
presented a serious threat to both the fairness and reliability
of the criminal trial process and the preservation of dignity,
order, and decorum in the courtroom.
¶107 Although we conclude that the circuit court did not
err in refusing to allow Anthony's testimony, we further hold
that, even if we assumed error, such error is subject to
harmless error analysis. Given the overwhelming evidence of
Anthony's guilt, the assumed error was harmless beyond a
reasonable doubt.
43
No. 2013AP467-CR
¶108 Therefore, we affirm the decision of the court of
appeals and uphold Anthony's conviction.
By the Court.—The decision of the court of appeals is
affirmed.
44
No. 2013AP467-CR
¶109 ANN WALSH BRADLEY, J. (concurring). Contrary to the
majority, I conclude that it was error to exclude the
defendant's testimony. I agree with the dissent that the
circuit court's interest in enforcing its evidentiary ruling did
not justify a complete denial of the defendant's right to
testify.
¶110 However, like the majority, I determine that any
error was harmless. The evidence of the defendant's guilt was
substantial. The gruesome nature of the offense and extent of
the victim's injuries appear to undermine the defendant's claim
of self-defense. Several witnesses testified that the defendant
threatened to kill the victim with an ice pick. One witness
also testified that the defendant admitted to killing the victim
because she was cheating on him. Given the evidence, I am
satisfied beyond a reasonable doubt that the error was harmless.
Accordingly, I concur.
1
No. 2013AP467-CR.ssa
¶111 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I
disagree with the majority opinion's resolution of both issues
presented in the instant case: I. Did the circuit court violate
the defendant's constitutional right to testify? II. Is the
violation of a criminal defendant's right to testify to relevant
evidence (here, self-defense) subject to harmless error review?
¶112 I would hold that the defendant was unconstitutionally
deprived of the right to testify on his own behalf. I would
further hold that harmless error review does not apply when a
criminal defendant is denied the right to testify to relevant
evidence. See my dissent in State v. Nelson, 2014 WI 70, ¶¶67-
79, 355 Wis. 2d 722, 849 N.W.2d 317 (Abrahamson, C.J.,
dissenting), petition for cert. filed, 83 U.S.L.W. 3440 (U.S.
Nov. 13, 2014) (No. 14-555). The majority opinion extends
Nelson.
¶113 For these reasons, I would reverse the court of
appeals decision and grant the defendant a new trial.
I
¶114 The majority opinion correctly acknowledges that "a
defendant in a criminal case has a fundamental constitutional
right to testify in his or her own defense."1 As the majority
opinion points out, this right "is not absolute";2 some
limitations are both inevitable and permissible. However,
according to Rock v. Arkansas, 483 U.S. 44, 56 (1987), any
1
Majority op., ¶46.
2
Id., ¶48.
1
 No. 2013AP467-CR.ssa
limitations placed on a defendant's right to testify "may not be
arbitrary or disproportionate to the purposes they are designed
to serve." In other words, the importance of the defendant's
right to testify in his own defense must be balanced against any
dangers posed by allowing the defendant to testify. As the
majority explains, "'[t]he reviewing court [must] ask[] whether
the reasons given for the denial are sufficiently persuasive to
justify depriving the defendant of his fundamental
constitutional right to testify.'"3
¶115 In the instant case, the "limitation" imposed on the
defendant's right to testify was in fact a complete denial of
that right, which prevented the defendant from testifying to
relevant evidence, namely self-defense. The majority opinion
determines that this "limitation" was "not arbitrary or
disproportionate to the purposes it was designed to serve," and
thus that the circuit court did not err.4
¶116 I cannot agree.
¶117 First, the circuit court's interest in enforcing an
evidentiary ruling cannot outweigh the defendant's
constitutional right to testify.
¶118 In the instant case, the defendant wished to present
evidence that he killed the victim in self-defense. The
majority opinion recognizes the importance of the defendant's
3
Id., ¶52 (quoting Arredondo v. Pollard, 498 F. Supp. 2d
1113, 1126 (E.D. Wis. 2007)).
4
Majority op., ¶10.
2
No. 2013AP467-CR.ssa
self-defense testimony.5 To explain why he fled the scene, the
defendant also intended to testify that he had been wrongfully
convicted in the 1960s and had a heightened fear of the criminal
justice system. The defendant's fleeing the scene was presented
by the State as evidence of guilt.
¶119 The circuit court sought to prevent the defendant's
introduction of information about his 1960s conviction, which
the circuit court viewed as irrelevant and unduly prejudicial.
The defendant insisted on speaking about the prior conviction.
To keep this evidence out, the circuit court prevented the
defendant from testifying altogether. As a result, the
defendant was unable to present any evidence of self-defense
(the defendant's only defense).6
¶120 The transcript of the circuit court's colloquy with
the defendant, much of which is reproduced in the majority
opinion,7 demonstrates that the circuit court's primary reason
for denying the defendant his right to testify was the circuit
court's desire to exclude irrelevant testimony.8
5
See majority op., ¶85.
6
See id., ¶34.
7
See id., ¶¶26-34.
8
The following statements by the circuit court are
illustrative:
I'm not making an arbitrary ruling making people
follow just for my pleasure. I have this rule because
this jury has a difficult decision to make. I don't
want it made more difficult by having to consider
matters which don't help their decision, and your
(continued)
3
No. 2013AP467-CR.ssa
¶121 The circuit court's goal of preventing the
introduction of what it viewed as irrelevant and unduly
prejudicial evidence is, of course, a valid one. Indeed, it is
obligatory.9 Consequently, irrelevance and undue prejudice "may
be the basis for objecting to the defendant's testimony and for
sustaining objections to the defendant's testimony once the
defendant takes the stand."10 But they cannot be the bases for
preventing the defendant from taking the stand in the first
place when the defendant intended to provide relevant testimony
regarding self-defense.
difficult experience in Illinois as a younger man
doesn't help them make their decision today. . . .
. . . .
If it was a simple balancing test, if somebody told me
that they were intentionally going to break one of the
rules that we set for the court and it carried only a
little bit of prejudice and there was an awful lot of
probative value they would otherwise have in their
testimony . . . [it would] give a person carte
blanch[e] to break the court's rules . . . . There's
nothing a court could do to enforce those rules. . . .
As a consequence if [the defendant] tried to get [the
excluded evidence] in he's forfeited his right to
testify.
9
See Wis. Stat. § 904.02 (2009-10) ("Evidence which is not
relevant is not admissible."); Wis. Stat. § 904.03 (2009-10)
("[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusing of the issues, or misleading the jury . . . ."). All
subsequent references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise indicated.
10
State v. Nelson, 2014 WI 70, ¶84, 355 Wis. 2d 722, 849
N.W.2d 317 (Abrahamson, C.J., dissenting).
4
No. 2013AP467-CR.ssa
¶122 In the instant case, this court is barring relevant
testimony. In Nelson, the court insisted it was barring only
irrelevant testimony.11 In my dissent in Nelson, I took the
position that "a court should not use the relevance of a
defendant's testimony to justify barring the defendant from
taking the stand at all. We cannot know whether [his or] her
testimony is relevant before [he or] she testifies."12 The
majority opinion extends Nelson in the present case.
¶123 Further, that the defendant's testimony may be
prejudicial to the defense cannot justify a trial court's denial
of the defendant's right to testify. "[A] circuit court cannot
refuse to allow a defendant to testify solely because the court
wishes to protect the defendant from himself or herself."13
¶124 Thus, the defendant in the instant case should have
been permitted to take the witness stand and give relevant
testimony. If a part of the defendant's testimony was
objectionable, the State could have objected and the circuit
court could have sustained the objection. If necessary, the
11
Nelson, 355 Wis. 2d 722, ¶49 n.14.
12
Id., ¶84 (Abrahamson, C.J., dissenting). Cf. Luce v.
United States, 469 U.S. 38, 41 (1984) (holding that a court
cannot weigh the probative value of a defendant's testimony
against its prejudicial effect when the defendant has not
testified because "the precise nature of the defendant's
testimony . . . is unknowable").
13
Nelson, 355 Wis. 2d 722, ¶24. See also id., ¶82
(Abrahamson, C.J., dissenting) ("That the defendant may be ill-
advised or unwise to testify is not the legal standard for
determining whether the circuit court erred in barring the
defendant from testifying.").
5
No. 2013AP467-CR.ssa
circuit court could also have provided a limiting instruction,
as the majority opinion acknowledges.14 These steps would have
comprised a proportionate response——if not a perfect solution——
to irrelevant or unduly prejudicial testimony from the
defendant.
¶125 In contrast, preventing the defendant from taking the
stand altogether, which prevented the defendant from giving
relevant testimony regarding self-defense, constituted a
disproportionate response in violation of the defendant's
fundamental constitutional right to testify.15
¶126 Second, to the extent the circuit court based its
denial of the defendant's right to testify on a determination
that the defendant forfeited that right through "stubborn and
defiant conduct that posed a serious threat to . . . the
preservation of dignity, order, and decorum in the courtroom,"16
the circuit court's response was disproportionate.
¶127 The majority opinion quotes the statement in Illinois
v. Allen, 397 U.S. 337, 343 (1970), that "courts must indulge
every reasonable presumption against the loss of constitutional
rights,"17 but fails to apply it to the present case. Comparing
the facts of Allen with the facts of the present case
demonstrates this failure.
14
See majority op., ¶89.
15
See Rock v. Arkansas, 483 U.S. 44, 56 (1987).
16
Majority op., ¶95.
17
Id., ¶88.
6
 No. 2013AP467-CR.ssa
¶128 The defendant in Allen sought to represent himself at
trial. However, when trial commenced, the defendant's behavior
posed a significant problem. The defendant repeatedly engaged
in abusive, disrespectful, and disruptive conduct in the
presence of the jury. For example, the defendant argued loudly
with the judge, used violent language to threaten the judge,
talked over opposing counsel, and ripped up papers from his case
file.
¶129 In response, the judge instructed appointed counsel to
take over representing the defendant, and repeatedly warned the
defendant that his outbursts could result in removal from the
courtroom. Eventually, the judge did remove the defendant from
the courtroom. However, the defendant was permitted to return
later that day. When his disruptive conduct resumed, he was
removed again, and then permitted to return again. After his
second removal and return, the defendant remained in the
courtroom for the rest of his trial.
¶130 The record in the instant case shows that the
defendant never behaved in an unruly manner when the jury was
present; that his disruptive conduct was limited to a single,
lengthy colloquy with the circuit court in which the defendant
insisted that if he took the stand, he would not follow the
circuit court's instructions regarding the subject matter of his
testimony; and that the circuit court responded to this
contumacy by depriving the defendant entirely of his right to
testify.
7
No. 2013AP467-CR.ssa
¶131 The judge in Allen faced far more egregious conduct
than is present in the instant case, and yet the judge went to
far greater lengths to protect the defendant's constitutional
rights than did the circuit court in the instant case.
¶132 The same is true with regard to subsequent cases that
have relied on Allen to justify the denial of criminal
defendants' rights to testify and be present in the courtroom.
Trial judges have given defendants second and third chances to
participate in trial after initially denying the defendants'
rights to testify and be present in the courtroom.18 Trial
judges have also developed work-arounds to avoid the complete
denial of defendants' constitutional rights.19
¶133 With this precedent in mind, I conclude that the
circuit court's complete denial of the defendant's right to
testify in the present case, which prevented the defendant from
testifying to relevant evidence regarding self-defense,
18
See, e.g., United States v. Ives, 504 F.2d 935, 942-46
(9th Cir. 1974), vacated on other grounds, 421 U.S. 944 (1975)
(the defendant engaged in persistent disruptive behavior,
including repeated physical attacks against multiple attorneys,
but the trial court nevertheless gave him three opportunities to
testify).
19
See, e.g., Ives, 504 F.2d at 943-44 (the trial court
accommodated an unruly defendant's preference for testifying
from the defense table without first taking an oath); Douglas v.
State, 214 P.3d 312 (Alaska 2009) (after extreme disruptive
conduct, including frequently interrupting the proceedings,
insulting his attorneys, and even striking one of his attorneys
in the face, the trial court offered to allow the defendant to
testify telephonically).
8
No. 2013AP467-CR.ssa
constitutes a disproportionate response to the dangers posed by
the defendant's unruly conduct.
¶134 In sum, the importance of the defendant's right to
give relevant testimony in his own defense must be balanced in
the instant case against the possibility that the defendant
would introduce irrelevant testimony and engage in disruptive
behavior. In the instant case, the appropriate balance was not
struck. The circuit court failed to "indulge every reasonable
presumption against the loss of constitutional rights."20
¶135 The question to be asked is whether "the reasons given
for the denial are sufficiently persuasive to justify depriving
the defendant of his fundamental constitutional right to
testify."21 My answer is no. I conclude that the complete
denial of the defendant's constitutional right to testify was
error.
II
¶136 I further conclude that the error in the instant case
is not subject to harmless error review. Rather, automatic
reversal is appropriate and the defendant is entitled to a new
trial. I disagree with the majority opinion's statement that it
is "confirm[ing] that a violation of a criminal defendant's
right to testify to relevant evidence is subject to harmless
20
Illinois v. Allen, 397 U.S. 337, 343 (1970).
21
Arredondo v. Pollard, 498 F. Supp. 2d 1113, 1126 (E.D.
Wis. 2007).
9
No. 2013AP467-CR.ssa
error analysis." Majority op., ¶96 (citing Nelson, 355
Wis. 2d 722, ¶¶32-33).
¶137 The holding of the majority opinion is not dictated by
Nelson. The Nelson court insisted the defendant's proposed
testimony was irrelevant and applied harmless error review to
the exclusion of the defendant's irrelevant testimony. In
contrast, the court in the present case applies harmless error
review to the exclusion of the defendant's relevant testimony
regarding self-defense.
¶138 I explored in Nelson the distinction between errors
that are subject to harmless error analysis and errors that are
not.22 In short, "a limited class of fundamental constitutional
errors defy analysis by harmless error standards" and "are so
intrinsically harmful as to require automatic reversal."23
¶139 I maintained in Nelson that "the defendant's right to
testify falls within this category of fundamental rights not
subject to harmless error analysis."24
¶140 In my dissent in Nelson, 355 Wis. 2d 722, ¶72-79
(Abrahamson, C.J., dissenting), I cited three primary
considerations supporting this conclusion. These considerations
are even more compelling in the instant case, in which the
22
Nelson, 355 Wis. 2d 722, ¶¶70-71 (Abrahamson, C.J.,
dissenting).
23
Neder v. United States, 527 U.S. 1, 7 (1999) (internal
quotation marks omitted).
24
Nelson, 355 Wis. 2d 722, ¶72 (Abrahamson, C.J.,
dissenting).
10
No. 2013AP467-CR.ssa
defendant was barred from testifying to relevant evidence
regarding self-defense:
1. The right to testify is meaningless if the defendant
is not allowed to actually testify. Testifying gives
the defendant an opportunity to face his or her
accusers, to tell his or her story, and to attempt to
persuade those who will make a decision that
profoundly affects the defendant's life and liberty.
"[T]here [i]s no rational justification for
prohibiting the sworn testimony of the accused, who
above all others may be in a position to meet the
prosecution's case."25
2. The right to testify is intertwined with the right of
self-representation. In Faretta v. California, 422
U.S. 806 (1975), the United States Supreme Court
declined to apply harmless error review to the denial
of a defendant's right of self-representation. In
Rock v. Arkansas, 483 U.S. 44, 52 (1987), the United
States Supreme Court stated that the right to testify
is even more fundamental than the right of self-
representation. If a denial of the right to self-
representation is not subject to harmless error
review, and the right to testify is an even more
fundamental right than the right of self-
25
Ferguson v. Georgia, 365 U.S. 570, 582 (1961).
11
No. 2013AP467-CR.ssa
representation, it follows that the right to testify
is not subject to harmless error review.
3. The error of denying the defendant's right to testify
falls within the various formulations the United
States Supreme Court has provided for the category of
errors not subject to harmless error review. For
example, the error undermines a right founded on
respect for free choice and individual human dignity;
the error infects the entire trial process, rendering
it fundamentally unfair; and the error produces
consequences that are unquantifiable, indeterminate,
and unmeasurable.
¶141 My conclusion that the erroneous denial of a
defendant's right to testify is not subject to harmless error
review is well summarized by Judge Godbold in his dissent in
Wright v. Estelle, 572 F.2d 1070, 1078 (5th Cir. 1978) (Godbold,
J., dissenting) (citations omitted):
To deny a defendant the right to tell his story from
the stand dehumanizes the administration of justice.
I cannot accept a decision that allows a jury to
condemn to death or imprisonment a defendant who
desires to speak, without ever having heard the sound
of his voice.
The decision whether to testify is a matter of higher
quality and dignity than trial happenings such as
whether to object to evidence.
¶142 In sum, because I determine that the circuit court
erred in depriving the defendant of his right to testify to
relevant evidence regarding self-defense and that this error is
12
No. 2013AP467-CR.ssa
not subject to harmless error review, I would reverse the court
of appeals decision and grant the defendant a new trial.
¶143 For the reasons set forth, I dissent.
13
No. 2013AP467-CR.ssa
1