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SCOW: Trial court’s erroneous dismissal of NGI defense was harmless

State v. Erick O. Magett, 2014 WI 67, 7/16/14, affirming an unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

The circuit court erred when it prevented Magett from testifying on the issue of mental disease or defect during the responsibility phase of his NGI trial because the court mistakenly believed that Magett was not a competent witness regarding his own mental condition and that he was required to present expert testimony on the issue. The circuit court also erred in dismissing Magett’s NGI defense without hearing any testimony during the responsiblity phase. However, a majority of the supreme court holds these errors are harmless, so Magett does not get a new hearing on the issue of mental responsibility.

Magett was charged with battery by a prisoner for hitting a member of a “show-of-force” team during a cell extraction at the Supermax facility in Boscobel. (¶¶12-19). He entered an NGI plea, but the court-appointed expert did not support this defense and Magett obtained no additional expert opinion in support of the plea. (¶¶19-21). Magett testified during the guilt phase that he lost consciousness during the event and did not remember hitting the guard. (¶¶17-18). After the jury found him guilty and the trial moved to the responsibility phase, the court asked Magett’s lawyer what evidence they would present. (¶22). When she explained their evidence would consist of Magett’s testimony about the event and his loss of memory, the court refused to proceed to the responsibility phase, saying Magett needed some testimony and that Magett himself wasn’t competent to testify to the issue of mental responsibility. (¶¶22-24). The court concluded Magett couldn’t meet his burden of proving an NGI defense and said it was directing a verdict in favor of the state on that issue. (¶¶23-24).

The circuit court was wrong to require Magett to present expert testimony to prove his NGI defense and to preclude Magett from testifying to his own mental condition. The supreme court reaffirms the holding of State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240 (1985), that “[a] favorable expert opinion is not an indispensable prerequisite to a finding of mental disease or defect.” (¶¶41-43). The court notes the obvious point that a defendant will ordinarily offer expert testimony, but under Leach and State v. Perkins, 2004 WI App 213, 277 Wis. 2d 243, 689 N.W.2d 684, may also offer testimony by lay witnesses as well as his own testimony, as he is competent to testify to his mental condition. (¶¶44, 53-56). As a practical matter, it is highly unlikely nonexpert testimony, especially if it comes only from the defendant, will suffice because it will likely to be viewed as self-serving or lacking credibility. (¶¶43-47, 60). “In only an exceptional case with extraordinary facts may a defendant carry his burden in the responsibility phase of a criminal trial by relying solely on his own testimony.” (¶7). Further, a defendant does not have an unlimited right to give opinion testimony on the issue of mental disease or defect because of his status as a lay witness. (¶¶57-60).

The circuit court also erred in refusing to allow Magett to put on evidence in the responsibility phase of a trial before ruling on his NGI defense. Allowing the defendant an opportunity to offer all his evidence ensures that any dismissal (which would come at the end of the defendant’s evidence on mental responsibility) or directed verdict (which would come after all the evidence on mental responsibility, including the state’s) is informed by a full consideration of the defendant’s position. (¶¶62-65). “There will not be many cases where the defendant’s position is so bereft of merit that the court can conclude that there is no jury question as a matter of law before the defendant presents his evidence.” (¶9). Thus, “it is preferable, fairer, and more judicious to allow a defendant to put on his evidence in the responsibility phase before dismissing the NGI defense.” (¶65).

Nonetheless, this panoply of errors was harmless because it is clear from Magett’s testimony about the event that he would not have presented sufficient evidence to meet his burden. (¶¶47-50). In particular, there is no way to establish from his testimony alone whether he suffered a loss of consciousness, and was unaware of the incident as it was occurring, or whether he experienced only episodic amnesia, in which case he could have been conscious and could have had substantial capacity to understand the wrongfulness of his conduct and to conform his behavior to the law but would not remember it. Thus, “[t]o allow the jury to deliberate on that issue based only on Magett’s testimony would be akin to asking the members of the jury to flip a coin. There must be more for the jury to consider. (¶48). Moreover, there was “voluminous” evidence against Magett, including his arguable preparation for the incident and the court-appointed examiner’s unhelpful opinion. (¶¶51-52).

A dissent by Chief Justice Abrahamson (joined by Justice Bradley) criticizes the majority for muddying the holding in Leach by saying that only in exceptional cases with extraordinary facts will an NGI defense succeed without an expert (¶¶74, 79-86) and reducing the denial of Magett’s ability to put on evidence to an issue of “timing” of ruling on a dismissal or directed verdict, when in fact the circuit court’s failure to use the “preferable, fairer, and more judicious” procedure deprived Magett of the fundamental right to put on evidence. “Perhaps the defendant would have been unable to meet his burden to prove that he was not guilty by reason of mental disease or defect, but how could the circuit court know without giving the defense attorney the opportunity for a full and proper proffer? Perhaps the defendant would not have persuaded the jury, but that is not the appropriate test for precluding the defendant’s testimony.” (¶76).

The dissent also decries the “troubling development” of cases like this one in which the court assumes, without deciding, there was error but then finds the error harmless. E.g., State v. Nelson, 2014 WI 70; State v. Rocha-Mayo, 2014 WI 57, and State v. Deadwiller, 2013 WI 75. “By repeatedly assuming error and concluding that the error is harmless, this court fails to determine whether any systemic problems exist and fails to provide adequate guidance to litigants, the circuit courts, and the court of appeals regarding important day-to-day practices and procedures.” (¶96).

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