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State v. Tom L. Garcia, 2010 WI App 26

court of appeals decision; for Garcia: Paul M. Ruby

Defendant’s Right to Testify – After-the-Fact Evidentiary Hearing on Required Colloquy
Although a colloquy is required by State v. Weed, 2003 WI 85 before the defense rests without testimony from the defendant, failure to conduct the colloquy doesn’t automatically result in new trial but, rather, supports postconviction evidentiary hearing procedure.

¶14  The supreme court in Weed mandated a simple colloquy for courts to employ when a defendant chooses not to testify at trial. See id., ¶43. It proceeded to review testimony from a postconviction evidentiary hearing and concluded that Weed knowingly, intelligently and voluntarily waived his right to testify. Id., ¶47. Although the supreme court refused to articulate a specific remedy when the right- to-testify colloquy is absent, its example is sufficient to convince us that the evidentiary hearing is the proper procedural response. Furthermore, this remedy is consistent with those offered to defendants who are not afforded the proper colloquy when other important constitutional rights are at stake. See Anderson, 249 Wis. 2d 586, ¶26. If the State demonstrates by clear and convincing evidence that the defendant knowingly, intelligently and voluntarily waived the right to testify, the issue is resolved. If the State fails to meet its burden, the defendant is entitled to a new trial.