SCOW: No right-to-testify colloquy needed in second NGI phase

State v. James Elvin Lagrone, 2016 WI 26, 4/22/2016, affirming an unpublished court of appeals decision, majority opinion by Ziegler, dissent by A.W. Bradley (joined by Abrahamson); case activity (including briefs)

Lagrone wasn’t told he had the right to testify during the second, mental responsibility phase of his NGI trial. He alleged in his postconviction motion that he didn’t know he had any such right. The trial court denied the motion without a hearing. The supreme court now affirms that denial in an opinion that neither (1) decides whether Lagrone had a right to testify during the second phase, nor (2) explains how the denial of that right, if it exists, can be raised in postconviction proceedings.

Lagrone coupled a plea of guilty with an NGI plea, so his trial didn’t have a guilt phase. (¶11). The court did engage him in a plea colloquy, but neglected to mention the right to testify. (¶13). Lagrone also completed a plea questionnaire; the box for “I give up my right to testify and present evidence at trial” was checked, but there was a handwritten note next to it: “True for phase I, Not for II.” (¶11 n.11). Near the end of the mental responsibility phase, the court asked Lagrone and his counsel whether they wished to present additional evidence; both responded that they did not. (¶13 n.13).

Wisconsin law holds a defendant’s constitutional right to testify “fundamental” and requires trial courts to conduct a colloquy before it can be waived. State v. Weed, 2003 WI 85, ¶2, 263 Wis. 2d 434, 666 N.W.2d 485. When the trial court fails to conduct a colloquy and the defendant doesn’t testify, the postconviction procedure is akin to that for a Bangert plea-withdrawal motion: the defendant who can point to the deficiency (or absence) of a colloquy and allege that he or she did not understand the right is entitled to an evidentiary hearing at which the state must prove the defendant’s understanding. State v. Garcia, 2010 WI App 26, ¶9, 323 Wis. 2d 531, 779 N.W.2d 718.

So that’s what Lagrone did: he filed a postconviction motion noting the lack of a colloquy and alleging he did not understand that he had the right to testify at his NGI trial. (¶14). The circuit court concluded that there is no “fundamental” right to testify in the second phase of an NGI trial, and refused to hold a hearing “particularly where the defendant has not set forth anything in his motion of what his testimony would have been.” (¶15).

(You are probably now wondering how “what his testimony would have been” is relevant to the question of whether Lagrone knew he had the right to testify. You may also be pondering whether it is fair to deny Lagrone relief based on his failure to allege “what his testimony would have been” given that the governing case, Garcia, requires no such allegation. You’ll have to look deep inside yourself for answers, because the majority opinion doesn’t even acknowledge the questions, instead simply faulting Lagrone, who it says “does not even explain the substance of his proposed testimony.” (¶56).)

The five-member majority engages in a lengthy discussion of the constitutional sources of the right to testify, seeking to discover whether that fundamental right pertains in the second NGI phase. (¶¶37-46). Long story short: no. Why? Because the mental responsibility phase of a criminal trial–which, you’ll recall, determines whether a person is “guilty” or “not guilty” of a crime–is not a criminal proceeding. Or at least, not criminal enough–it’s also not “purely civil,” though it has enough “civil hues” to “remove the proceeding from the exacting demands of criminal proceedings and leave it in a category of its own.” (¶¶34, 36).

So, if there’s no fundamental constitutional right to testify here, is there still a plain old unfundamental one? Maybe. The most the majority will say is that it can “assume for the sake of argument that Lagrone possesses a due process (as opposed to statutory) right to an opportunity to be heard and offer evidence, including in the form of his own testimony.” (¶49). The majority can “assume” this, it says, because Lagrone “was indeed offered such an opportunity” when he and counsel were asked if they wished to present further testimony (even though it is clear that he was never told he himself could testify). So, the court declines to decide whether such a right exists. (¶50).

Even if such a right does exist, the court goes on to say that Lagrone “has not made the requisite showing for an evidentiary hearing; more is required.” (¶55). What this “more” may consist of is left totally opaque; the court simply cites to cases generically describing the Nelson/Bentley pleading standards which require, in essence, specificity. (¶55).

Hard to see what could be more specific than the allegation Lagrone made here; as the court (unanimously) observed not so long ago, it is “difficult to expand on an allegation that the defendant did not understand information that was not conveyed to him.” State v. Hampton, 2004 WI 107, ¶59, 274 Wis. 2d 379, 683 N.W.2d 14.

While declining to use its power to compel the circuit courts to conduct a right-to-testify colloquy, the court at least exhorts them to do so, employing the “better practice” formulation we have come to expect.

Though there’s some hedging, there, too:  at one point the court majority allows only that asking the defendant whether he or she wants to testify “may well be the best practice.”

This “better practice” business provides one theme for the dissent, which then goes on to attack the notion that the mental responsibility phase of a criminal trial is not criminal, relying in particular on a question asked at oral argument by one of the justices now joining the majority:

But in this kind of case, if the defendant does not meet his or her burden, then they wind up like Mr. Lagrone going to the Wisconsin state prison system. And so I’m trying to wrestle with, and I’m wondering if you can help me to resolve, how it would be less important for the personal colloquy at the NGI phase as it is at the guilt or innocence phase?

. . .

The stakes are the same. Its prison or not prison.

(¶87).