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State v. Rickey R. Denson, 2009AP694-CR, review granted 12/8/10

decision below: summary order; for Denson: Donna Odrzywolski;  supreme court news release

Issues (from the news release):

  1. Should the constitutional right of a criminal defendant not to testify on his behalf and remain silent at trial be recognized as a fundamental right that can only be waived personally by the defendant with an on the record colloquy?
  2. Should the only appropriate remedy, for failure to engage in an on-the-record colloquy regarding the right not to testify at trial, be a new trial?
  3. Should the failure to engage in an on-the-record colloquy regarding the right not to testify be subject to a harmless error analysis?

A defendant has a fundamental right to testify, so the trial court must undertake a colloquy before the defense rests without putting the defendant on the stand, State v. Weed, 2003 WI 85. Denson did testify – with some success, apparently; he gained acquittal on several counts, including 1st-degree intentional homicide – and his argument, in contrast to Weed’s, is that the trial court was obligated to make sure he knew he had a right not to testify before he took the stand. This issue came up in State v. Jaramillo, 2009 WI App 39, which held that the right not to testify was “fundamental,” and thus must be waived knowingly, intelligently and voluntarily. The court of appeals in that case didn’t require a colloquy before the defendant testifies, but held that a defendant raising a postconviction claim of invalid waiver of the right not to testify is entitled to an evidentiary hearing on the matter. (Same procedural remedy applies when Weed has been violated, State v. Garcia, 2010 WI App 26.) Denson, according to the briefs, was granted such a hearing, with the trial court finding that the State had proven a knowing, etc., waiver. Denson’s argument, then, is likely to be that contemporaneous colloquy is required, absence of which automatically mandates reversal of any conviction.

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