Issues (composed by On Point)
Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?
If so, is an on-the-record colloquy regarding the waiver of the right to testify required?
Lagrone didn’t testify during the responsibility phase of his NGI trial, 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 with Lagrone about waiving the right to testify, citing State v. Weed, 2003 WI 85, ¶¶36-47, 263 Wis. 2d 434, 666 N.W.2d 485, which mandates such a colloquy in criminal cases.
There’s no case law directly addressing whether a defendant has the right to testify at the responsibility phase, so Lagrone grounded his argument on State v. Langenbach, 2001 WI App 222, ¶¶ 19-20, 247 Wis. 2d 933, 634 N.W.2d 916, which held the Fifth Amendment privilege against self-incrimination applied at the responsibility phase of an NGI trial because that phase is a “part” of a criminal case. Since the right to testify is a “necessary corollary” to the Fifth Amendment’s guarantee against self-incrimination, Rock v. Arkansas, 483 U.S. 44, 52 (1987), the defendant should likewise have the right to testify and, concomitantly, the trial court should conduct a Weed colloquy if the defendant waives the right.
The trial court disagreed. It decided Lagrone didn’t have a fundamental right to testify at the responsibility phase, so no colloquy was required. (Court of Appeals op. ¶¶2-9). The court of appeals acknowledged the issue is “an open question” but declined to decide it. (Court of Appeals op. ¶¶11, 13). Instead, as explained in detail in our post on the decision, it went off on a wholly inapt harmless error analysis based on a very wrongheaded application of State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317. It seems safe to assume the supreme court has accepted review to decide the novel issue of whether there’s a right to testify at the responsibility phase, and not to decide whether the court of appeals erred in doing a harmless error analysis.
If the supreme court holds there is a right to testify, the next question will be whether the circuit court must conduct a colloquy with the defendant who decides not to testify. As a matter of logic the court should follow Weed and answer “yes.” Having answered “yes,” the court should then hold that when the trial court fails to conduct a colloquy (or does an inadequate colloquy) and the defendant later asserts he didn’t understand the right he was waiving, the burden shifts to the state to show the waiver was knowing and voluntary, for that is the procedure adopted by State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718, for failure to engage in a Weed colloquy. It is also, of course, the procedure adopted for other situations in which the court must conduct a colloquy with a defendant waiving a fundamental right. 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 even 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. We’ll know soon whether the supreme court will follow this chain of logic.