Does a defendant who has raised an NGI defense have the right to testify in the mental responsibility phase of the NGI proceeding? That’s the novel issue in this case. But the court of appeals doesn’t decide the question. Instead, the court ignores relevant binding case law and, relying on a case that doesn’t apply, concludes that if Lagrone had the right to testify, any error in denying it was harmless.
Lagrone raised the defense of not guilty by reason of mental disease or defect (NGI) to various charges. He pleaded guilty to the charges at the guilt phase of the proceeding. The parties then presented testimony during the mental responsibility phase. Lagrone did not testify during the responsibility phase and the judge did not conduct a colloquy on the record establishing whether Lagrone understood he had a right to testify and that he was waiving that right by not taking the stand. Postconviction, Lagrone argued the trial judge should have conducted a colloquy regarding Lagrone’s waiver of the right to testify, citing State v. Weed, 2003 WI 85, ¶¶36-47, 263 Wis. 2d 434, 666 N.W.2d 485, which mandated such a colloquy in criminal cases. The trial court denied the motion on the ground Lagrone didn’t have a fundamental right to testify at the responsibility phase, so no colloquy was required. (¶¶2-9).
Lagrone and the State agree there’s no case law directly addressing whether Lagrone had a right to testify at that phase and whether a Weed colloquy is required (¶¶11, 12), and the court of appeals likewise acknowledges the issue is “an open question.” (Heading preceding ¶11). But instead of deciding “this issue of first impression,” the court of appeals holds that regardless of whether the trial court was required to conduct an additional colloquy, he is not entitled to relief because any error was harmless. (¶13). The court decides harmless error analysis is appropriate based on State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317, which held that a trial court’s denial of a defendant’s right to testify is subject to harmless error analysis. Between the evidence in the record supporting the verdict and the fact that Lagrone did not offer any evidence about what he would have said if he had testified, the court cannot conclude that any error had an effect on the trial’s outcome. (¶¶13-18).
The court of appeals’ analysis is wrongheaded from start to finish. To start, the court gives passing mention (¶11) to State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718, which established the remedy for a claim the trial judge failed to engage in the colloquy required under Weed, but it fails to apply Garcia. Under Garcia, a defendant files a motion asserting that (1) there was no colloquy and (2) he or she did not understand he or she had a right to testify. If the record shows there was no colloquy, the burden shifts to the state to prove by clear and convincing evidence that, despite the lack of a colloquy, the defendant knowingly and voluntarily waived the right to testify. 323 Wis. 2d 531, ¶9.
This is, of course, the same procedure crafted to address a court’s failure to engage in a colloquy with a defendant when the person waives the right to a jury trial, waives the right to counsel, or enters a guilty plea. As with the right to testify, all of these events require an on-the-record colloquy to ensure the protection of specific constitutional rights. State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997) (right to counsel); State v. Anderson, 2002 WI 7, ¶ 23, 249 Wis. 2d 586, 638 N.W.2d 301 (right to trial by jury); State v. Bangert, 131 Wis. 2d 246, 270-72, 389 N.W.2d 12 (1986) (waiver of multiple constitutional rights by entry of guilty or no contest plea). The procedure has also been adopted for claims that a defendant didn’t knowingly and voluntarily waive the right not to testify, even though there is no mandated colloquy in that situation. State v. Denson, 2011 WI 70, ¶¶66-70, 335 Wis. 2d 681, 799 N.W.2d 831. This procedure is used because nonwaiver of a fundamental right is presumed unless waiver is affirmatively shown to be knowing and voluntary, e.g., Klessig, 211 Wis. 2d at 204; thus, in the absence of a record showing a valid waiver, it is appropriate to burden the state with overcoming the presumption of nonwaiver.
Lagrone was clearly proceeding under this established procedure. It’s undisputed there was no colloquy, and Lagrone’s postconviction motion asserted he didn’t understand he had the right to testify. (¶7). So the threshold question is whether Lagrone has a right to testify at the responsibility phase. If he didn’t, no colloquy was required and there was no error (as the circuit court held); if he did, Garcia mandates a hearing at which the state must prove a knowing and voluntary waiver. But the court of appeals ignores all this and decides it can dodge this question by invoking Nelson‘s harmless error analysis.
But Nelson just doesn’t fit here. In Nelson there was a colloquy (about the right not to testify, 355 Wis. 2d 722, ¶14), after which the judge wouldn’t let the defendant testify. The colloquy established that Nelson knew about her right, and based on her knowledge she voluntarily asserted her right to testify; the court just wouldn’t let her do so. Because there was a record of a knowing and voluntary waiver, Nelson wasn’t addressing the validity of the defendant’s waiver of the right. Instead, the issue was completely different—the judge’s erroneous denial of an assertion of a known right. This difference matters for at least two reasons.
First, because there was a colloquy in Nelson, the decision in that case has no reason to address and therefore nothing to say about the Garcia procedure. (Or, more particularly, the Denson procedure, since Nelson was waiving the right not to testify.) The burden-shifting procedure simply didn’t apply. Thus, Nelson‘s use of harmless-error analysis where there is a record of a valid waiver does not, by implication or otherwise, modify or overrule Garcia‘s (or Denson‘s) mandate to use the burden-shifting remedy for cases where there is no colloquy. Nor does Nelson say that a defendant claiming an invalid waiver of the right to testify must allege what would’ve been different if he or she had been aware of the right at the time it was effectively waived.
Second, because there was a colloquy about the exercise of her rights to testify or not, Nelson made statements (albeit not detailed ones) about what she would say on the stand. Thus, a reviewing court had some (slight) basis to make a harmless error determination. Lagrone, of course, was following Garcia, so he did not explain—and was not required to explain—what he would have said had he taken the stand; indeed, he isn’t even required to allege he would have taken the stand. Analyzing his claim requires a focus solely on the validity of the waiver of his right to testify, not on whether the trial court erred in frustrating his desire to exercise the right he was asserting.
The court of appeals doesn’t acknowledge the difference between Nelson and Garcia and offers no explanation for why it believes it can ignore Garcia in light of Nelson. And by ignoring Garcia, the court effectively changes the rules mid-stream. Besides being wrong, this approach is unfair to Lagrone, who rightly litigated the case based on the binding authority of Garcia. The court also unfairly criticizes Lagrone for failing to offer evidence about what he would have said if he had testified—evidence that is simply not required by Garcia—and then essentially blaming him “because he has failed to show that any error was not harmless.” (¶13). Although the court eventually acknowledges it is the state’s burden to prove an error was harmless, it still emphasizes Lagrone’s lack of an offer of proof. (¶18). And there the court’s analysis finishes, as wrongheaded as it began.