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SCOW: Denial of defendant’s right to testify is subject to harmless error analysis

State v. Angelica Nelson, 2014 WI 70, 7/16/14, affirming an unpublished per curiam court of appeals decision; majority decision by Justice Roggensack; case activity

Nelson wanted to testify at her trial on child sexual assault charges, but after a colloquy with her about waiving her right to remain silent the trial judge wouldn’t let her because he concluded she was testifying against counsel’s advice and her testimony was “completely irrelevant” to the elements the State had to prove. (¶¶14-16). The supreme court assumes without deciding that the trial judge erred, but it follows the majority of jurisdictions in holding that erroneous denial of a defendant’s right to testify is subject to harmless error analysis because its effect on the outcome of the trial is capable of assessment.

Applying the trial error/structural error dichotomy, Arizona v. Fulminante, 499 U.S. 279, 307-10 (1991), State v. Travis, 2013 WI 38, ¶54, 347 Wis. 2d 142, 832 N.W.2d 491, the court holds:

¶32  An error denying the defendant of the right to testify on his or her own behalf bears the hallmark of a trial error.  That is, its affect [sic] on the jury’s verdict can be “quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 308.

¶33  We recognize that a defendant’s testimony may be, on the whole, of particular importance to the issues in the case. See [State v.Rivera, 741 S.E.2d [694,] 704 [(S.C. 2013)] (“it is difficult to fathom anything more logically connected to the fundamental issue” in a case “than a defendant’s own testimony about the [crime]”). However, this does not make its absence incapable of assessment. … [D]enying a defendant the right to testify is not the type of error, “the effect[] of which [is] inherently elusive, intangible, and [therefore] not susceptible to harmless error review.” Palmer v. Hendricks, 592 F.3d 386, 399 (3d Cir. 2010). Accordingly, harmless error review applies.

¶34  We also observe that, as with other errors in the “trial error” category, the denial of a defendant’s right to testify occurs at a discrete point in the trial. By contrast, errors that are structural permeate the entire process. These include a complete denial of counsel… ; a denial of counsel of defendant’s choice… ; a biased judge… ; racial discrimination during jury selection… ; and denial of self-representation… .

Based on the standard harmless error test (¶45) and its conclusion that the denial of the right to testify is analogous to the denial of cross-examination (¶46), the court adopts, from Momon v. State, 18 S.W.3d 152, 168 (Tenn. 1999), the following factors for determining whether denial of the right to testify is harmless: 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. (¶46). Unsurprisingly, the court’s application of these factors to this case lead it to conclude that denying Nelson the right to testify was harmless. (¶¶47-51).

A concurrence by Justice Ziegler concludes the trial court didn’t err in finding Nelson wasn’t validly waiving her right to remain silent. The concurrence reads the record as showing that Nelson’s lawyer said it wasn’t a good idea for her to testify and that she would have given only incriminating testimony that would have invited jury nullification. (¶¶53-59).

A dissent by Chief Justice Abrahamson, which Justice Bradley joins, would hold, rather than assume, that the trial did commit error and would treat the error as structural. Denying the right to testify interferes with the ability to conduct the defense, making the right intertwined with the right to self-representation, denial of which is structural. (¶¶73-77). Further, the right to testify also falls into those more amorphous structural error categories covering “basic protections” and rights founded on dignity and free choice. (¶¶78-79).

The U.S. Supreme Court has yet to decide this issue, but, as our post on the review grant explained and the majority notes (¶35), most other courts have held that denial of the right to testify can be harmless, Quarels v. Commonwealth, 142 S.W.3d 73, 81 (Ky. 2004) (citing state and federal cases), and only a few have concluded the error is structural—e.g., Rivera, 741 S.E.2d 694.

Nelson makes (and the dissent outlines) the best argument for structural error: When recognizing the right to testify, the Court said “an accused’s right to present his own version of events in his own words” is “[e]ven more fundamental to a personal defense than the right of self-representation” and that “[a] defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Rock v. Arkansas, 483 U.S. 44, 52 (1987). If so, violation of the right should be treated like a violation of the right to represent oneself, which under McKaskle v. Wiggins, 465 U.S. 168 (1984), is structural error. Indeed, Rock echoes McKaskle, 465 U.S. at 177, observing that “[t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense.” Further, we can’t know the full impact on the jury of the defendant’s willingness to take the stand instead of remaining silent and therefore can’t fully judge the effect of denying the defendant the right to testify, making harmless error analysis is inappropriate. The majority barely engages this argument. It cites Rock once in passing (¶19) without analyzing it and gives only limited attention to the defendant’s autonomy interest before concluding it is irrelevant to the determination of whether harmless error analysis should apply. (¶¶36-42).

Though the majority doesn’t hold that the trial judge erred, it sets out the reasons why that is the only possible conclusion to reach. In particular, the majority emphasizes that a defendant has the “ultimate authority to make certain fundamental decisions regarding the case,” including whether to testify, Jones v. Barnes, 463 U.S. 745, 751 (1983), and retains this right “no matter how unwise such a decision,” Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir. 1988). “This means that a circuit court cannot refuse to allow a defendant to testify solely because the court wishes to protect the defendant from himself or herself. … It also means that a circuit court must refrain from unduly influencing a defendant’s decision.” (¶24). That’s why the court won’t mandated a colloquy with a defendant who decides she will testify: There’s too much danger the court will inadvertently interfere with defense strategy by suggesting it disapproves of the decision to testify, State v. Denson, 2011 WI 70, 335 Wis. 2d 681, ¶¶63-65, 779 N.W.2d 531. (¶¶25-26).

These passages could come in handy when dealing with trial judges who, like the concurring justice, try to cloak a paternalistic decision in the garb of a finding that the defendant isn’t making a knowing and intelligent decision to testify. And don’t let those judges get beguiled by the concurrence’s jury nullification claim, either. The case the concurrence relies on precludes explicit argument for jury nullification in closing, not testimony that’s relevant, albeit incriminating. State v. Bjerkaas, 163 Wis. 2d 949, 959-63, 427 N.W.2d 615 (Ct. App. 1991).

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