                                                              2016 WI 26

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:               2013AP1424-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        James Elvin Lagrone,
                                  Defendant-Appellant-Petitioner.

                         A REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:          April 22, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 25, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Richard J. Sankovitz

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, A. W., J. dissents, joined by
                        ABRAHAMSON, J.
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Kaitlin A. Lamb, assistant state public defender and oral
argument by Kaitlin A. Lamb.




       For      the    plaintiff-respondent,    the   cause   was   argued   by
Katherine D. Lloyd, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
                                                                       2016 WI 26
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2013AP1424-CR
(L.C. No.    2011CF1996)

STATE OF WISCONSIN                           :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                    FILED
      v.                                                        APR 22,2016

James Elvin Lagrone,                                              Diane M. Fremgen
                                                               Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.               Affirmed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.         This is a review of an

unpublished decision of the court of appeals, State v. Lagrone,

No. 2013AP1424-CR, unpublished slip op. (Wis. Ct. App. Apr. 7,
2015),      which   affirmed   the   Milwaukee    County      circuit      court's

judgment of conviction and order denying defendant James Elvin

Lagrone's ("Lagrone") postconviction motion for an evidentiary

hearing and a new trial on the question of Lagrone's mental

responsibility.1

      1
       The Honorable Richard J. Sankovitz presided over the most
relevant hearings in this case and entered the judgment of
conviction.   The Honorable Jeffrey A. Wagner entered the order
denying postconviction relief.
                                                                     No.      2013AP1424-CR



      ¶2       Criminal         defendants          possess         a         fundamental

constitutional right to testify in their own defense.                                  See,

e.g., State v. Anthony, 2015 WI 20, ¶¶46, 48, 361 Wis. 2d 116,

860 N.W.2d 10 (citing Rock v. Arkansas, 483 U.S. 44, 49 (1987)).

Further, this court has stated that a circuit court "should

conduct an on-the-record colloquy to ensure that the defendant

is knowingly, intelligently, and voluntarily waiving his or her

right     to   testify."         State     v.   Weed,      2003     WI     85,   ¶2,    263

Wis. 2d 434, 666 N.W.2d 485.

      ¶3       The question before this court is whether, upon a plea

of not guilty by reason of mental disease or defect ("NGI")

under      Wis.   Stat.    § 971.15       (2013-14),2       such     right-to-testify

colloquies are also required at the responsibility phase of the

resulting bifurcated trial established by Wis. Stat. § 971.165.

See     generally    State       v.   Magett,    2014      WI     67,      ¶¶33-40,     355

Wis. 2d 617,      850     N.W.2d 42      (discussing       nature       and   history    of

bifurcated trials resulting from NGI pleas).

      ¶4       Lagrone    does    not     challenge     the     plea     colloquy      that
occurred       during     the     guilt     phase     of      his      bifurcated       NGI

proceedings.        He does not argue that he was unaware that, by

pleading guilty to the criminal charges against him, he was

waiving his fundamental right to testify at a criminal trial

pertaining to the validity of those charges.                        Instead, we must

analyze Lagrone's opportunity to testify at the responsibility

      2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                            2
                                                                                  No.    2013AP1424-CR



phase of his bifurcated trial.                         The circuit court below did not

conduct       a    right-to-testify              colloquy        with    Lagrone         during     the

responsibility phase of his bifurcated trial, and Lagrone argues

that       because      he     did    not    understand          that    he      had    a   right    to

testify at that phase, he is entitled to an evidentiary hearing

under State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779

N.W.2d 718, so that a court may determine whether he properly

waived his right to testify.                      Ultimately, determining whether a

colloquy is necessary during the responsibility phase of NGI

proceedings            requires       us    to   determine        whether         the    fundamental

right to testify applies at that phase.                                 The court of appeals

below       decided           that     resolution           of    this       "issue         of   first

impression" was unnecessary because, it reasoned, the harmless

error doctrine applied and any error by the circuit court was

harmless.          See State v. Lagrone, No. 2013AP1424-CR, unpublished

slip op., ¶¶13, 17, 19 (Wis. Ct. App. Apr. 7, 2015).

       ¶5         We    conclude       that,      although         a     better         practice,     a

circuit       court      is     not    required        to    conduct         a   right-to-testify
colloquy          at    the    responsibility           phase     of     a       bifurcated      trial

resulting from a plea of not guilty by reason of mental disease

or defect.3            Further, Lagrone is not entitled to an evidentiary

       3
       As we will explain, nothing in this opinion affects our
instruction in State v. Weed that circuit courts conduct an on-
the-record colloquy at a criminal trial, or at the guilt phase
of bifurcated NGI proceedings, to ensure that the defendant is
knowingly, intelligently, and voluntarily waiving his or her
fundamental right to testify.    State v. Weed, 2003 WI 85, ¶2,
263 Wis. 2d 434, 666 N.W.2d 485.


                                                   3
                                                                          No.     2013AP1424-CR



hearing because he has not made the requisite showing for such a

hearing.          Accordingly, we affirm the decision of the court of

appeals.

                                I.     FACTUAL BACKGROUND

       ¶6     On     April      30,     2011,     at     about    10:00        p.m.,    Lagrone

arrived      at     the   Milwaukee        home     of   his     ex-girlfriend,         B.M.J.4

Lagrone wanted to enter B.M.J.'s home, but she refused to let

him in.       Lagrone nevertheless forced his way into the home and

then       "proceeded      to      'humiliate'"          B.M.J.,        abusing      her     both

physically and sexually, until about 1:00 p.m. the following

day.        This     violent       episode        ceased       only     when    an     apparent

acquaintance         of   B.M.J.      arrived       at   the     home    to    check    on    her

because she was not answering his phone calls.                            The acquaintance

observed that the door to the home was wide open and heard

screaming.          He entered the home and saw B.M.J. lying on the

floor; Lagrone was on top of her with his hands around her neck.

The acquaintance called 911 and Lagrone fled in B.M.J.'s car.

Lagrone turned himself in later that day.
                             II.      PROCEDURAL BACKGROUND

       ¶7     On May 5, 2011, a criminal complaint was filed against

Lagrone charging him with: (1) strangulation and suffocation,

contrary       to     Wis.      Stat.      § 940.235(1)          (2011-12);       (2)      false

imprisonment,         contrary        to   Wis.     Stat.      § 940.30       (2011-12);      (3)


       4
       The facts of this case are not material to the outcome of
this appeal and are taken from the criminal complaint filed
against Lagrone.


                                                4
                                                                    No.     2013AP1424-CR



second-degree sexual assault (force or violence), contrary to

Wis. Stat. § 940.225(2)(a) (2011-12); (4) recklessly endangering

safety (first degree), contrary to Wis. Stat. § 941.30(1) (2011-

12); and (5) operating a motor vehicle without owner's consent,

contrary     to    Wis.    Stat.      § 943.23(3)      (2011-12).           Each     count

carried     the      domestic      abuse        modifier.       See        Wis.      Stat.

§ 968.075(1)(a) (2011-12).

      ¶8     On    May    13,    2011,     Lagrone's    attorney          informed    the

Milwaukee County circuit court5 that she had reason to doubt

Lagrone's competency.            The attorney asked the court to order a

competency        evaluation     of    Lagrone.        The    court       granted     the

request.     On May 25, 2011, Dr. Robert Rawski filed a report in

which he provided his belief to a reasonable degree of medical

certainty that Lagrone suffered from paranoid schizophrenia but

was currently competent to stand trial.

      ¶9     On June 9, 2011, a preliminary hearing was held and

Lagrone pleaded not guilty and NGI.                On June 21, 2011, the court6

ordered that Lagrone be examined for purposes of his NGI plea.
On   July   22,    2011,   Dr.     John    Pankiewicz       filed   a     report     which

stated his belief to a reasonable degree of medical certainty

that Lagrone was suffering from schizophrenia on the date of his

offense.      However, the report also stated that Dr. Pankiewicz

could not support Lagrone's NGI plea.7                On October 31, 2011, at a
      5
          The Honorable Mary Kuhnmuench presided.
      6
          The Honorable Kevin Martens presided.
      7
          The report stated in part:
                                                                            (continued)
                                            5
                                                               No.    2013AP1424-CR



final    pretrial    conference,8    Lagrone's     attorney        distributed     a

report authored by Dr. Anthony Jurek and dated October 24, 2011.9

The report stated Dr. Jurek's opinion that Lagrone was suffering

from paranoid schizophrenia on the date of his offense and that

"the diagnosis of Paranoid Schizophrenia impaired the subject's

capacity    to    understand   the   wrongfulness      of    his     behavior   and

rendered him unable to conform his behavior to the requirements

of law."     On March 5, 2012, at a final pretrial conference,

Lagrone's attorney requested an additional competency evaluation

because she had reason to doubt Lagrone's competency.10                          The

court granted the request.           On March 14, 2012, Dr. Deborah L.

Collins filed a report in which she provided her belief to a

reasonable       degree   of   medical     certainty        that     Lagrone    was

presently    competent    to   proceed.      The    report      "urge[d]       court

         Overall, I do not believe that there was
    sufficient evidence to find to a reasonable degree of
    medical certainty that the predominant factor in
    Mr. Lagrone's   offense   related   behavior   was   a
    consequence of his mental illness.   I therefore could
    not find to a reasonable degree of medical certainty
    that he lacked substantial capacity to understand the
    wrongfulness of his act or conform his behavior to the
    requirements of the law . . . .
    8
         The Honorable Richard J. Sankovitz presided.
    9
       It is not clear from the record if this report was ever
actually filed with the circuit court. The report itself is in
the record.
    10
       The attorney explained that when she had met recently
with Lagrone, "Lagrone was unable to function. He was bringing
up inappropriate religious things in the middle of our
discussions. He was shaking."


                                       6
                                                                        No.    2013AP1424-CR



officers to remain sensitive in the event of any significant

changes in [Lagrone's] overall mental status and/or compliance

with    psychiatric      treatment,"         as    "such    changes      [might]       signal

fluctuations in his competency and warrant his re-examination."

       ¶10    On March 16, 2012, a plea hearing was held at which

the    parties      informed       the    court    that    they   had     negotiated      an

agreement according to which Lagrone would plead guilty to all

five criminal counts against him but would proceed to try the

mental       responsibility        phase     of     the    bifurcated         trial.      If

Lagrone's NGI plea were rejected, the State agreed to recommend

a sentence of 15 years of initial confinement and seven years of

extended supervision.

       ¶11    Lagrone       then    pleaded       guilty    to    all     five    criminal

counts      against    him.         The    court     confirmed     that       Lagrone     had

reviewed       or     signed       certain        documents,      including        a    plea

questionnaire         and      waiver       of     rights      form      and     addendum,

correspondence        between       the    State     and    Lagrone's         attorney,    a

penalty chart, and jury instructions.11                    The court also confirmed
that Lagrone understood his rights as listed in certain of the

documents and the fact that he was waiving some of the rights by

pleading guilty, but that he was not waiving his right to the


       11
       Some of these documents, such as the plea questionnaire
form, feature handwritten notes in the margins. For example, on
the plea questionnaire form under the heading "Constitutional
Rights," and next to the checked box reading "I give up my right
to testify and present evidence at trial," the following is
handwritten: "True for Phase I, not for II."


                                              7
                                                                       No.    2013AP1424-CR



second    phase    of     the    bifurcated      trial.12          The       court    asked

Lagrone's     attorney        whether     she    was       "satisfied        Mr.     Lagrone

understands      all    the     rights   that    he    gives      up    about      pleading

guilty in phase one"; Lagrone's attorney indicated that she was

satisfied.

    ¶12     On    March    23,    2012,    and     April     27,    2012,      the     court

conducted    the   responsibility          phase      of    the    bifurcated        trial.

Testimony was offered at this phase by: (1) the police officer


    12
         A portion of the exchange proceeded as follows:

         THE COURT: Do you see all the rights listed in
    these documents?

            THE DEFENDANT: Yes.

            THE COURT: Do you understand them?

            THE DEFENDANT: Yes.

         THE COURT: Do you understand that by pleading
    guilty in the first phase of this case, you give up
    all those rights, like the right to have a trial on
    whether you committed these crimes and the right to
    force the State to prove you committed these crimes
    and the right to present witnesses about whether you
    committed the crimes, all those rights, did you
    understand all those and understand that you're giving
    them up?

            THE DEFENDANT: Yes.

         THE COURT: Now, there's an important right that
    you did not give up by pleading guilty.      That's the
    right to have the second part of the trial.      That's
    the right to have the court decide whether you should
    be held responsible; do you understand that?

            THE DEFENDANT: Yes.


                                           8
                                                                   No.    2013AP1424-CR



to whom Lagrone had first spoken when Lagrone had turned himself

in;   (2)    a   social    worker    who   had   interacted        with   Lagrone   on

several occasions; (3) Dr. Jurek, who supported Lagrone's NGI

plea; and (4) Dr. Pankiewicz, who did not support Lagrone's NGI

plea.      On April 27, 2012, the court found that Lagrone had "not

satisfied the court on Phase Two of this two-phase trial" and

that "he should be held responsible for the crimes for which he

was convicted in the first phase."                   The court adjudged Lagrone

guilty of the five counts against him and entered a judgment of

conviction.

      ¶13    At no time during the responsibility phase did the

court inform Lagrone that he had a right to testify or ask

Lagrone     whether   he    was     waiving    his    right   to    testify.13      On
      13
       At the close of                 evidence, however, the following
conversation took place               between the court, Lagrone, and
Lagrone's attorney:

           THE COURT: Ms. Erickson, does Mr. Lagrone want to
      present any additional evidence?

             MS. ERICKSON: No.

           THE COURT: Okay. Mr. Lagrone, did you hear what
      Ms. Erickson just told me?

             THE DEFENDANT: (Nods head.)

             THE COURT: You have to say "yes" or "no."

             THE DEFENDANT: Yes.

             THE COURT: Do you understand what she told me?

             THE DEFENDANT: Yes.

             THE COURT: Do you agree with her?
                                                                          (continued)
                                           9
                                                                      No.    2013AP1424-CR



May 25, 2012, the court sentenced Lagrone to a cumulative six

years     of    initial     confinement        and    six     years         of    extended

supervision.

    ¶14        On   May    17,   2013,    Lagrone      filed     a      postconviction

motion.     According to the motion, "At no point during the court

trial did the court conduct an on-the-record colloquy regarding

Mr. Lagrone's right to testify. . . .                   Lagrone asserts that he

did not understand that he had a right to testify at the mental

responsibility       phase."      Lagrone      argued     that      "the     fundamental

right      to       testify . . . is        applicable           to         the      mental

responsibility phase" of a bifurcated trial resulting from an

NGI plea, and requested an evidentiary hearing "at which the

State    carries     the    burden   to    show      by     clear     and        convincing

evidence that the defendant's waiver of the right to testify at

trial was knowing and voluntary."                    Lagrone also requested an

order granting a new trial on the responsibility phase.                             He did

not provide information regarding the content of his proposed

testimony.
    ¶15        On May 29, 2013, the circuit court14 issued a decision

and order denying Lagrone's motion.               The court concluded:

    [Lagrone] does not have a fundamental constitutional
    right to testify during the mental responsibility
    phase . . . . In the absence of either a fundamental
    right or a statutory duty on the part of the court to
    conduct a colloquy concerning the right to testify in


               THE DEFENDANT: Yes.
    14
          The Honorable Jeffrey A. Wagner presided.


                                          10
                                                                   No.     2013AP1424-CR


       a Phase II proceeding, the court declines to hold an
       evidentiary hearing, particularly where the defendant
       has not set forth anything in his motion of what his
       testimony would have been.
       ¶16    On June 17, 2013, Lagrone filed a notice of appeal.

On April 7, 2015, the court of appeals affirmed the decision of

the    circuit       court     in   an     unpublished     decision.          Lagrone,

unpublished slip op., ¶19.                 The court of appeals acknowledged

that the question of whether circuit courts are required to hold

a right-to-testify colloquy at the responsibility phase of a

bifurcated trial resulting from an NGI plea was an "issue of

first impression," but resolved the case on other grounds.                         Id.,

¶13.    Relying on State v. Nelson, which held that "the denial of

a defendant's right to testify                   is   subject to harmless error

review," State v. Nelson, 2014 WI 70, ¶43, 355 Wis. 2d 722, 849

N.W.2d 317, the court of appeals concluded that "a trial court's

failure to hold an evidentiary hearing following the failure to

conduct a colloquy regarding a defendant's right to testify is

no different than the direct denial of a defendant's right to

testify      at    trial"     and   that    harmless     error    review     therefore

applied.          Lagrone, unpublished slip op., ¶¶16-17.                   The court

subsequently determined that any error that had occurred was

harmless.         Id., ¶19.

       ¶17    On May 7, 2015, Lagrone filed a petition for review in

this   court.         On    September      9,    2015,   this    court   granted    the

petition.




                                            11
                                                                   No.     2013AP1424-CR




                             III.    STANDARD OF REVIEW

      ¶18     This court "review[s] constitutional questions, both

state and federal, de novo."                    State v. Schaefer, 2008 WI 25,

¶17, 308 Wis. 2d 279, 746 N.W.2d 457 (citation omitted).

                                     IV.    ANALYSIS

            A.     The Fundamental Constitutional Right of Criminal
                    Defendants to Testify in Their Own Defense
      ¶19     In 1980 we confronted the question of whether criminal
defendants possess a constitutional right to testify in their

own   behalf       at    a   criminal      trial.       State     v.     Albright,     96

Wis. 2d 122, 126-29, 291 N.W.2d 487 (1980), modified, Weed, 263

Wis. 2d 434.            We   explained     that    although     the    United    States

Supreme Court had never determined whether a criminal defendant

possesses a constitutional right to testify, the right was "part

of the due process rights of the defendant protected by the

Fourteenth Amendment."              Albright, 96 Wis. 2d at 128.                We thus

concluded that with reference to a criminal trial, wherein the

State bears the burden to prove the defendant's guilt beyond a

reasonable doubt, "there is a constitutional due process right

on the part of the criminal defendant to testify in his own

behalf."      Id. at 129.

      ¶20     We    also     examined      in     Albright    whether     a   criminal

defendant's right to testify is a "fundamental" constitutional

right such that, as with rights ranging from the right to an

appeal   to      the    right   to    the    assistance      of   counsel,      only   a
defendant's personal waiver of the right is an effective waiver.


                                            12
                                                                             No.       2013AP1424-CR



Id. at 129-30 (citations omitted).                       While recognizing that a

criminal       defendant's       right     to       testify        is    "important,"             we

declined         to     characterize       it       as    fundamental,                  ultimately

concluding, "We perceive no need for courts in post conviction

hearings to delve into the processes by which an attorney and

his   client      determine      whether      the    defendant          should          waive     his

right to testify."              Id. at 130-32.           Instead, "counsel, in the

absence     of    the    express       disapproval       of       the   defendant            on   the

record during the pretrial or trial proceedings, may waive the

defendant's right to testify."                Id. at 133.

      ¶21      Less than a decade later, in Rock v. Arkansas, the

United States Supreme Court recognized that the United States

Constitution          guarantees         "a        defendant            in         a      criminal

case . . . the right to take the witness stand and . . . testify

in his or her own defense."               Rock, 483 U.S. at 49.                    Although the

Court did not isolate any single explicit statement of the right

in the federal constitution, and although the Court acknowledged

that the right "is a change from the historic common-law view,
which was that all parties to litigation, including criminal

defendants, were disqualified from testifying because of their

interest in the outcome of the trial," id., the Court explained

that the right "is essential to due process of law in a fair

adversary system" and "has sources in several provisions of the

Constitution."           Id. at 51 (citing Faretta v. California, 422

U.S. 806, 819, n.15 (1975)).

      ¶22      First,     the    Court    explained,          a    criminal            defendant's
right     to     testify    is     a    "necessary       corollary            to       the    Fifth
                                              13
                                                                            No.        2013AP1424-CR



Amendment's guarantee against compelled testimony."                                    Id. at 52.

The Fifth Amendment of the United States Constitution states in

part, "No person . . . shall be compelled in any criminal case

to be a witness against himself . . . ."                           U.S. Const. amend. V.15

The Court reasoned that a privilege against self-incrimination

is    exercised       when        an    accused          decides    whether          to   testify;

"[e]very criminal defendant is privileged to testify in his own

defense, or to refuse to do so."                         Rock, 483 U.S. at 53 (quoting

Harris v. New York, 401 U.S. 222, 230 (1971)).

       ¶23    Second,       a     criminal         defendant's      right       to     testify    is

located in the Compulsory Process Clause of the Sixth Amendment

of the United States Constitution.                          Id. at 52.           The amendment

provides       in     part,            "In        all    criminal        prosecutions,           the

accused shall enjoy the right . . . to have compulsory process

for    obtaining      witnesses              in    his   favor . . . ."              U.S.   Const.

amend. VI.16         "Logically included in the accused's right to call

witnesses      whose       testimony          is    'material      and    favorable         to   his

defense' is a right to testify himself, should he decide it is
in    his    favor    to     do    so."            Rock,    483    U.S.    at     52      (citation

omitted).



       15
       The Fifth Amendment privilege applies to the states
through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1,
6 (1964).
       16
       The Sixth Amendment's Compulsory Process Clause applies
to the states through the Fourteenth Amendment.  Washington v.
Texas, 388 U.S. 14, 17-19 (1967).


                                                    14
                                                                              No.     2013AP1424-CR



      ¶24     Finally,          "[t]he           necessary         ingredients             of    the

Fourteenth Amendment's guarantee that no one shall be deprived

of liberty without due process of law include a right to be

heard and to offer testimony. . . ."                          Id. at 51.       The Rock Court

added    in    a    footnote      that          "[t]his       right     reaches       beyond     the

criminal      trial:      the     procedural            due    process     constitutionally

required in some extrajudicial proceedings includes the right of

the affected person to testify."                            Id. at 51 n.9.             The Court

cited as examples cases involving probation revocation, parole

revocation,         and   the     termination            of    welfare     benefits.             Id.

(citations omitted).

      ¶25     After Rock this court revisited Albright and concluded

that a criminal defendant's constitutional right to testify in

his     or    her    behalf       is        a    fundamental          right.          Weed,      263

Wis. 2d 434,        ¶¶37-39.           We       further     concluded      that       "a    circuit

court should conduct a colloquy with the defendant in order to

ensure that the defendant is knowingly and voluntarily waiving

his or her right to testify," though recognizing that only a
minority of jurisdictions required the practice.                                    Id. at ¶¶40-

41.

      ¶26     Most recently, we recognized that the right to testify

identified in Rock finds additional support in the Wisconsin

Constitution.             State    v.       Denson,         2011   WI    70,        ¶¶49-54,     335

Wis. 2d 681,        799    N.W.2d 831.                 Article     I,    Section       7    of   the

Wisconsin      Constitution            states          in     part,     "In     all        criminal

prosecutions the accused shall enjoy the right to be heard by
himself and counsel . . . [and] to have compulsory process to
                                                  15
                                                                  No.   2013AP1424-CR



compel the attendance of witnesses in his behalf . . . ."                       Wis.

Const. art. I, § 7.               Article I, Section 8 of the Wisconsin

Constitution states in part, "No person . . . may be compelled

in   any    criminal       case   to   be    a   witness    against     himself    or

herself."        Wis. Const. art. I, § 8(1).           Thus the due process,

compulsory process, and non-incrimination sources of the federal

constitutional right of criminal defendants to testify in their

own behalf have analogues in our state constitution.

      ¶27       Given this history, Lagrone now argues that an on-the-

record colloquy regarding waiver of his fundamental right to

testify should also be required at the responsibility phase of

his bifurcated trial.              In order to test the merits of this

claim, we must review the nature and purpose of NGI pleas and of

the responsibility phase of bifurcated NGI trials.17

           B.     NGI Pleas and the Responsibility Phase of the
                 Bifurcated Trial Resulting From an NGI Plea
      ¶28       At   the   outset,     it   is   critical    to   understand      the

essential differences between a plea of not guilty and a plea of

not guilty by reason of mental disease or defect.                       Typically,
upon a plea of not guilty, the parties proceed to trial wherein

the State bears the burden of securing a unanimous jury verdict

      17
       We recently had occasion to thoroughly examine the nature
and history of both Wisconsin's NGI plea and the bifurcated
trial resulting from such a plea.       See generally State v.
Magett, 2014 WI 67, ¶¶32-40, 355 Wis. 2d 617, 850 N.W.2d 42;
State v. Burton, 2013 WI 61, ¶¶42-46, 349 Wis. 2d 1, 832
N.W.2d 611.    We do not repeat in full the discussion that
occurred in these cases, but instead set out only the principles
most germane to the issues before us.


                                            16
                                                                                 No.       2013AP1424-CR



that it has proven each essential element of the offense charged

against the criminal defendant beyond a reasonable doubt.                                           See,

e.g.,    Holland          v.    State,       91      Wis. 2d 134,            138,    280     N.W.2d 88

(1979).       A court may not direct a verdict of guilt against a

defendant in a criminal case.                           State v. Peete, 185 Wis. 2d 4,

19, 517 N.W.2d 149 (1994) (citation omitted).                                       After the jury

renders       a    guilty       verdict,          the     circuit        court       sentences       the

defendant.           See,       e.g.,      In     re    Eckart,        85    Wis.    681,     681,    56

N.W. 375 (1893).

       ¶29        If, however, a criminal defendant enters a plea of NGI

(without joining it with a plea of not guilty), the defendant

thereby       "admits          that    but      for       lack    of     mental        capacity      the

defendant committed all the essential elements of the offense

charged      in     the    indictment,            information          or     complaint."           Wis.

Stat.    § 971.06(1)(d).                   "[T]he       court     will       find    the     defendant

guilty of the elements of the crimes, and the NGI plea will be

left    for       trial."           State       v.     Burton,     2013        WI    61,     ¶43,    349

Wis. 2d 1,          832    N.W.2d 611.                 This      trial,       however,        is    much
different than the criminal trial previously discussed.                                        In this

proceeding——which              is     concerned         with     the        criminal     defendant's

mental responsibility——the defendant, not the State, bears the

burden       of     establishing            mental        disease       or     defect        excluding

responsibility.            See Wis. Stat. § 971.15(3).                         The burden on the

defendant is not "beyond a reasonable doubt," but instead "to a

reasonable         certainty          by    the      greater      weight        of     the    credible

evidence."          Id.     The defendant need not obtain a unanimous jury
verdict, but instead only a five-sixths verdict.                                        Magett, 355
                                                     17
                                                           No.   2013AP1424-CR



Wis. 2d 617, ¶39.     And, unlike in a criminal trial, "a judge may

grant a motion to dismiss the NGI defense or direct a verdict in

favor of the state if the defendant cannot produce sufficient

evidence to show mental disease or defect."          Id.

    ¶30    Thus, under the posture of the current case, Lagrone

has already admitted that but for lack of mental capacity he

committed all the essential elements of the criminal offenses

charged against him.        If not for his NGI plea, Lagrone would

have proceeded to sentencing for committing those crimes.                 With

this general background in place, we now proceed to examine in

closer detail the nature and purpose of NGI pleas and their

concomitant procedures.

    ¶31    Under Wis. Stat. § 971.15, "Mental responsibility of

defendant," "[a] person is not responsible for criminal conduct

if at the time of such conduct as a result of mental disease or

defect    the    person    lacked   substantial      capacity    either     to

appreciate the wrongfulness of his or her conduct or conform his

or her conduct to the requirements of law."                § 971.15(1).     An
NGI plea is "an affirmative defense which the defendant must

establish to a reasonable certainty by the greater weight of the

credible evidence."       § 971.15(3).

    ¶32    The   affirmative    defense   of   NGI   established    by    Wis.

Stat. § 971.15(1) builds upon

    the centuries-long evolution of the collection of
    interlocking and overlapping concepts which the common
    law has utilized to assess the moral accountability of
    an individual for his antisocial deeds. The doctrines
    of   actus   reus,   mens   rea,   insanity,  mistake,
    justification, and duress have historically provided

                                    18
                                                                   No.    2013AP1424-CR


      the tools for a constantly shifting adjustment of the
      tension between the evolving aims of the criminal law
      and changing religious, moral, philosophical, and
      medical views of the nature of man.
Powell      v.    Texas,    392    U.S.     514,      535-36    (1968)   (plurality)

(emphasis added).          We have recognized with regard to Wisconsin's

NGI   plea       that   "[w]hether    or        not   there    should    be    criminal

responsibility is essentially a moral issue."                      Steele v. State,

97 Wis. 2d 72, 96, 294 N.W.2d 2 (1980).                       That is, at the heart

of any NGI inquiry is the following question:

      [I]s this person who has been found guilty beyond a
      reasonable doubt of criminal conduct to be punished or
      is there to be a different disposition because, in
      good conscience and public morality, the defendant is
      a person, because of mental disease or defect, who
      ought not to be held criminally liable for his or her
      conduct[?]
State v. Koput, 142 Wis. 2d 370, 389, 418 N.W.2d 804 (1988).

Importantly, however, "a criminal defendant's right to an NGI

defense is a statutory right that is not guaranteed by either

the   United      States   or     Wisconsin      Constitutions."         Magett,    355

Wis. 2d 617, ¶32 (citations omitted).
      ¶33    Under current statutory procedures, the dual issues of

whether a defendant has committed the criminal offense alleged

and whether a defendant may be held responsible for committing

that offense are determined in separate proceedings.                          See Wis.

Stat.      § 971.165;      Burton,        349     Wis. 2d 1,      ¶¶42-46.18        The

      18
           We explained in Burton:

      If the NGI plea is not joined with a plea of not
      guilty, the plea admits that but for lack of mental
      capacity the defendant committed all the essential
                                                   (continued)
                                           19
                                                 No.   2013AP1424-CR



responsibility phase of an NGI trial, in contrast to the so-

called "guilt phase," contains "elements of civil procedure" and

is "something close to a civil trial."   Magett, 355 Wis. 2d 617,

¶¶36, 39-40.   Specifically: (1) the burden of proof to establish

mental disease or defect, which is on the defendant, is the same

as the burden required in civil trials for most issues; (2) a



    elements of the offenses charged. Then——when there is
    a substantive basis for finding the crimes charged——
    the court will find the defendant guilty of the
    elements of the crimes, and the NGI plea will be left
    for trial.

         Conversely, if the defendant pleads not guilty in
    conjunction with an NGI plea, Wis. Stat. § 971.165(1)
    provides for the bifurcation of the guilt and mental
    responsibility phases of trial . . . .

Burton, 349 Wis. 2d 1, ¶¶43-44 (citations omitted).       Lagrone
pleaded guilty to the charges against him but proceeded to trial
on the question of his mental responsibility at the time of the
offense.    It might thus seem inaccurate to refer to the
proceedings in this case as "bifurcated"; only one phase was
tried. Put differently, because Lagrone did not contest that he
committed the offense alleged, there was no need for "a
separation of the issues [of whether Lagrone committed the
criminal offense alleged and whether Lagrone is mentally
responsible   for  committing  the   offense  alleged]   with   a
sequential order of proof in a continuous trial."     Wis. Stat.
§ 971.165(1)(a).

     Nevertheless, as the court of appeals and the parties
referred to Lagrone's "bifurcated" criminal proceeding, see,
e.g., State v. Lagrone, No. 2013AP1424-CR, unpublished slip op.,
¶3 (Wis. Ct. App. Apr. 7, 2015), as the issues of Lagrone's
guilt and mental responsibility were indeed determined in
sequence, and as the principles enunciated in this case are
equally applicable to a bifurcated NGI trial, we will, for
simplicity, use the practice of referring to the proceedings at
issue as "bifurcated."


                               20
                                                                       No.        2013AP1424-CR



judge may direct a verdict in favor of the State on the issue of

mental responsibility; and (3) the defendant need only obtain a

five-sixths jury verdict on the issue of mental responsibility.

See id., ¶39 (citations omitted).

     ¶34    On the other hand, the mental responsibility phase is

not "purely civil."           Koput, 142 Wis. 2d at 397.               We have instead

characterized     the        mental      responsibility        phase    as        "a    special

proceeding in the dispositional phase of a criminal proceeding——

a   proceeding        that    is      not     criminal    in     its     attributes         or

purposes."      Id.

     ¶35    In Koput we concluded that, given the nature of the

responsibility phase, a unanimous jury verdict on the issue of

mental responsibility was not required.                         Id. at 373-74.              In

rejecting a contrary conclusion, we said that the guilt and

responsibility        phases       are      not    "but   divisions          of     a   single

criminal trial":

     The   thesis   of   the  public   defender  that   the
     responsibility phase is but one part of a single
     criminal proceeding, and therefore must, in all
     respects, be treated in the same way as the guilt
     phase, is unsupportable.       The public defender's
     syllogism——a criminal defendant has a constitutional
     right to a unanimous verdict in a criminal case; the
     responsibility phase of a sequential trial is a part
     of a criminal trial, therefore the five-sixths verdict
     returned in Koput's case denied him a constitutional
     verdict——is flawed, because it is demonstrably evident
     that the responsibility phase is not a part of a
     "criminal" trial.    The entire history of bifurcated
     trials . . . makes evident that the purpose of each of
     the two phases is entirely different.
Id. at 394-95.        With regard to the purpose of the responsibility
phase,     we   observed        that        "in    considering     the       question       of

                                              21
                                                                      No.    2013AP1424-CR



insanity,        'we    are     largely    concerning         ourselves       with     the

difference in the institutional treatment of the defendant,'"

and   added      that    the    question    to    be    answered       in    the    mental

responsibility          phase   is   "noncriminal":          "[t]he     mental      state,

other than criminal intent, at the time of a crime is no more a

matter      of     criminal     inquiry     than       an    inquest        into    mental

responsibility at the time of the execution of a will."                             Id. at

392, 396 & n.17 (citation omitted).                    In fact, although an NGI

plea is described in Wis. Stat. § 971.15(3) as an "affirmative

defense,"

      [i]t is obvious . . . that the affirmative defense
      mentioned in sec. 971.15(3) is of an entirely
      different nature from affirmative defenses utilized by
      defendants in the guilt phase, i.e., alibi, privilege,
      et cetera, which if proved result in an outright
      dismissal of the charge.     Success on the affirmative
      defense of mental disease or defect does not have that
      result; rather, it is an affirmative defense to
      "responsibility"——it   relieves   the   person   of  the
      sanctions for criminal conduct.     It does not relieve
      the person already found guilty in the first phase of
      the factual finding of criminal conduct.     Rather, the
      successful assertion of the affirmative defense in
      phase   two    results    in    a   noncriminal-sanction
      disposition.
Id. at 388.

      ¶36     In    sum,   in   assessing       exactly      what    the    federal    and

state constitutions require in this case, we must bear in mind

that "[t]he civil hues of the responsibility phase, coupled with

the fact that bifurcation and the NGI plea are statutory in

nature,     not     constitutional,        remove      the    proceeding       from    the

exacting     demands       of   criminal    proceedings        and    leave    it     in   a


                                           22
                                                                           No.     2013AP1424-CR



category of its own."                 Magett, 355 Wis. 2d 617, ¶40 (citation

omitted).

   C. Whether the Fundamental Right of Criminal Defendants to
Testify in Their Own Defense Applies at the Responsibility Phase
                  of Bifurcated NGI Proceedings
      ¶37     As stated, the right to testify identified in Rock is

not   explicitly     listed           in    any        one    provision    of     the    federal

constitution,       but     instead              has     multiple     "sources"         in     that

document.       Rock, 483 U.S. at 51.                   It is therefore appropriate to

note that "[t]he inference of [constitutional] rights is not, of

course,     a    mechanical       exercise. . . .                  [T]he    right       must     be

independently       found        in        the        structure     and    history       of     the

constitutional text."             Faretta, 422 U.S. at 819 n.15.                        See also

id.   ("The     ability     to    waive           a    constitutional      right        does    not

ordinarily carry with it the right to insist upon the opposite

of that right" (citation omitted).).                           Much of what has been said

in    the   realm    of     substantive                 due     process    analysis,          which

sometimes calls for the protection of rights implicit in the

text and structure of the constitution, see, e.g., Washington v.

Glucksberg, 521 U.S. 702, 719-20 (1997), is applicable to the

general     practice      of      identifying                 constitutional      rights        not

explicitly stated in the federal or state constitutions.                                        "By

extending        constitutional                   protection         to      an         asserted

right . . . we, to a great extent, place the matter outside the

arena of public debate and legislative action."                                   Id. at 720.

"[G]uideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended.                         The doctrine of judicial self-


                                                  23
                                                  No.   2013AP1424-CR



restraint requires us to exercise the utmost care whenever we

are asked to break new ground in this field."     Collins v. City

of Harker Heights, 503 U.S. 115, 125 (1992) (citations omitted).

      ¶38   In Lagrone's view, we need not "break new ground" but

instead should simply apply the right identified in Rock to the

responsibility phase of bifurcated NGI proceedings.     Yet, close

examination of that right establishes that it does not govern

here.

      ¶39   The Rock Court indicated that the right to testify it

identified was not one established in the common law at the time

of the framing of the federal constitution.     Rock, 483 U.S. at

49.     "[T]he historic common-law view . . . was that all parties

to litigation, including criminal defendants, were disqualified

from testifying because of their interest in the outcome of the

trial."     Id. (citation omitted); see also Ferguson v. Georgia,

365 U.S. 570, 574 (1961) ("Disqualification for interest was

thus extensive in the common law when this Nation was formed.

Here, as in England, criminal defendants were deemed incompetent
as witnesses" (citation omitted).).19    The Court focused on the
      19
       Care should be taken to distinguish between a criminal
defendant's right to testify in his or her own behalf and a
defendant's ability at common law to provide unsworn testimony.
See generally, e.g., Mitchell v. United States, 526 U.S. 314,
332-36   (1999)    (Scalia,   J.,    dissenting)  ("[C]ommon-law
evidentiary rules prevented a criminal defendant from testifying
in his own behalf even if he wanted to do so.    That is not to
say, however, that a criminal defendant was not allowed to speak
in his own behalf . . . .        Traditionally, defendants were
expected to speak rather extensively at both the pretrial and
trial stages of a criminal proceeding" (emphasis added)
(citation omitted).).


                                 24
                                                                   No.     2013AP1424-CR



later formation of the "considered consensus of the English-

speaking         world"    that    criminal      defendants    were      competent   to

testify in their own behalf, and concluded that "[a]t this point

in the development of our adversary system, it cannot be doubted

that a defendant in a criminal case has the right to take the

witness stand and to testify in his or her own defense."                          Rock,

483 U.S. at 49-50 (citation omitted).20

       ¶40       The fundamental right identified by the Rock Court is

not some generalized right to testify; it is instead "[t]he

right       to   testify    on    one's   own    behalf   at   a   criminal    trial."

Rock, 483 U.S. at 51 (emphasis added); see also id. at 45 ("The

issue presented in this case is whether Arkansas' evidentiary

rule        prohibiting      the    admission       of    hypnotically       refreshed

testimony violated petitioner's constitutional right to testify

on her own behalf as a defendant in a criminal case" (emphasis

added).).         The right guarantees a criminal defendant the ability

to use his or her own words in order to defend against attempts

by the State to establish the defendant's criminal liability.
       ¶41       Thus defined, few could quarrel with the Rock Court's

statement that the existence of the right, "[a]t this point in

the development of our adversary system, [] cannot be doubted."

Id. at 49.           But Lagrone faces a considerably more difficult

challenge convincing this court that the "considered consensus

       20
       With regard to the eventual formation of this consensus,
we note that nine states had enacted competency statutes at the
time of the adoption of the Fourteenth Amendment. Mitchell, 526
U.S. at 335-36 (Scalia, J., dissenting).


                                            25
                                                                              No.     2013AP1424-CR



of    the    English-speaking            world"       is    that       criminal       defendants

possess      the     same       fundamental       right         to     testify:       (1)    at    a

statutory,         noncriminal          proceeding         to        which     they     have       no

independent constitutional right; (2) as to matters relevant,

not   to     the    criminal       question      of    whether         they       committed       the

conduct      alleged,       but    to    the    moral       question         of     their    future

institutional treatment.                 In a nutshell, the fundamental right

to testify on one's own behalf at a criminal trial does not

exist at the responsibility phase of bifurcated NGI proceedings

because      "it    is    demonstrably         evident          that    the       responsibility

phase is not a part of a 'criminal' trial."                              Koput, 142 Wis. 2d

at 395.       The responsibility phase does not pertain to defense

against accusations of criminal behavior.

       ¶42    The    conception          of    the     Rock          right    to     testify       as

belonging to criminal defendants to use in their own defense

against criminal charges follows from the nature of certain of

the   right's       sources       as    identified         by    the    Rock        Court.        For

instance,      the    right       arises      from    the       Fifth    Amendment          because
"[e]very criminal defendant is privileged to testify in his own

defense, or to refuse to do so."                     Rock, 483 U.S. at 53 (emphasis

added) (citation omitted).                    The purpose of the Fifth Amendment

privilege "was to insure that a person should not be compelled,

when acting as a witness in any investigation, to give testimony

which might tend to show that he himself had committed a crime."

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (citation omitted).

The    privilege         thus     protects      against         compelled           incriminating
testimony——testimony              relevant      to    the       question       of     whether     an
                                                26
                                                                       No.     2013AP1424-CR



individual has engaged in criminal conduct.                         See Incriminating,

Black's Law Dictionary (10th ed. 2014) (defining "incriminating"

as   "[d]emonstrating             or    indicating      involvement          in     criminal

activity");        Incriminating         Statement,         Black's    Law        Dictionary

(10th      ed.    2014)    (defining      "incriminating           statement"       as   "[a]

statement that tends to establish the guilt of someone, esp. the

person     making     it").        Insofar     as    the    right     to   testify       is    a

"necessary corollary" of the Fifth Amendment, Rock, 483 U.S. at

52   (emphasis       added),      it    guarantees     individuals         the      right     to

testify as to matters pertaining to the validity of the criminal

charges      against      them.        Such   testimony       is    not      necessary——or

appropriate——in the responsibility phase, because that phase is

not concerned with whether a defendant has engaged in criminal

activity.          Any    Fifth    Amendment        right    to    testify     is    instead

vindicated in the guilt phase.21

      ¶43        Lagrone relies on State v. Langenbach, in which the

court of appeals concluded that the Fifth Amendment privilege

against self-incrimination extends to the responsibility stage
of bifurcated NGI proceedings, to argue that its corollary must

also extend to that phase.                    State v. Langenbach, 2001 WI App

222, 247 Wis. 2d 933, ¶20, 634 N.W.2d 916.                           But what we have

already said shows that that claim must fail.                              To the extent

that Langenbach           rested its holding on the notion that Fifth


      21
       The same reasoning applies to the privilege against self-
incrimination contained in Article I, Section 8 of the Wisconsin
Constitution.


                                              27
                                                                      No.        2013AP1424-CR



Amendment protections continue past the entry of a guilty plea,

Langenbach, 247 Wis. 2d 933, ¶¶9-13, we agree that the Fifth

Amendment       privilege     is       applicable     in     "any . . . proceeding,

civil or criminal, formal or informal, where the answers might

incriminate      [an    individual]       in    future      criminal        proceedings."

Lefkowitz, 414 U.S. at 77 (citation omitted).                             Yet although a

witness might incriminate herself at both criminal and civil

proceedings, the range of settings at which a witness might have

legitimate reason to offer testimony pertaining to her criminal

guilt    is     considerably       narrower.          It    does    not      include         the

responsibility phase of bifurcated NGI proceedings, which does

not pertain to issues of criminal liability.

      ¶44      The     alternative        interpretation——that               the         Fifth

Amendment      right    to    testify     is    available      wherever           the    Fifth

Amendment privilege is available——has no basis in the federal

constitution and is impracticable.                   That is, although the State

may     not,     without      violating        the    privilege           against        self-

incrimination,       establish         noncriminal     statutory          proceedings         at
which to "by coercion prove a charge against an accused out of

his own mouth," Minnesota v. Murphy, 465 U.S. 420, 450 (1984)

(citation omitted), this does not                    require       that     a witness         be

permitted       to   use     "any . . . proceeding,            civil        or     criminal,

formal or informal, where the answers might incriminate him in

future      criminal       proceedings,"        Lefkowitz,         414      U.S.        at    77

(citation      omitted),      as   a    rostrum      from   which     to     protest         her

innocence or attempt to reduce impending criminal penalties, no


                                           28
                                                 No.   2013AP1424-CR



matter how irrelevant the proceeding to the witness's criminal

guilt.22




     22
       The Langenbach court separately premised its holding that
the Fifth Amendment privilege applied at the responsibility
phase on its conclusion that the responsibility phase, while not
criminal in nature, "remains a part of the criminal case in
general."    State v. Langenbach, 2001 WI App 222, ¶19, 247
Wis. 2d 933, 634 N.W.2d 916 (citation omitted).     The intended
constitutional meaning of that statement is unclear.      If the
court meant that, regardless of whether a criminal defendant's
testimony in the responsibility phase might incriminate the
defendant in any future proceeding, the privilege applies
because a statement might be "incriminating" for purposes of the
responsibility phase itself, the court was incorrect. See Allen
v. Illinois, 478 U.S. 364, 368 (1986) ("What we have
here . . . is not a claim that petitioner's statements to the
psychiatrists might be used to incriminate him in some future
criminal proceeding, but instead his claim that because the
sexually-dangerous-person proceeding is itself 'criminal,' he
was entitled to refuse to answer any questions at all."). As we
have explained, the responsibility phase is not criminal in
nature or purpose.    Therefore, a statement at that phase, by
definition, could only be "incriminating" for purposes of some
other proceeding.    In any event, that line of reasoning was
apparently not essential to the Langenbach court's holding.

     The Langenbach court relied in part for this portion of its
reasoning on its earlier decision in State v. Murdock, 2000 WI
App 170, 238 Wis. 2d 301, 617 N.W.2d 175, where it had concluded
that   a   criminal   jury  waiver   statute    applied   to   the
responsibility phase.   Murdock, 238 Wis. 2d 301, ¶¶2, 19.     The
Murdock court stated in the course of its analysis that "[t]he
statutes    governing   the   procedures    for    trying    [NGI]
pleas . . . have kept the responsibility phase and guilt phase
attached in procedure even as they are detached in nature and
purpose." Id. at ¶24.

                                                       (continued)
                               29
                                                              No.   2013AP1424-CR



    ¶45      As   discussed,   the   right    of   criminal     defendants    to

testify in their own behalf also has a source in the Compulsory

Process Clause, because "[l]ogically included in the accused's

right   to    call   witnesses   whose       testimony   is     'material    and

favorable to his defense,' United States v. Valenzuela-Bernal,

458 U.S. 858, 867 (1982), is a right to testify himself, should

he decide it is in his favor to do so."              Rock, 483 U.S. at 52

(emphasis added).       What is not "logically included" in such a

right, however, is a right to testify as to matters and in a

proceeding applicable, not to a defendant's criminal defense,

     We do not express an opinion on the merits of Murdock's
holding, because the case is distinguishable.    The question in
Murdock did not involve the interpretation of any constitutional
provisions, but instead whether the responsibility phase is part
of a "criminal case[]" within the meaning of the jury waiver
statute.   Id., ¶19 (citation omitted).   And the fact that the
guilt and responsibility phases are "attached in procedure"——
i.e., both "part of the chapter on criminal procedure," id.,
¶27——is arguably much more relevant to the question of whether
the jury waiver statute applies equally to both phases than it
is to a question involving the existence or application of a
constitutional right, especially given our earlier case law
explaining   the   noncriminal  nature   and   purpose  of   NGI
proceedings.   See, e.g., State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110
("[S]tatutory language is interpreted in the context in which it
is used; not in isolation but as part of a whole; [and] in
relation to the language of surrounding or closely-related
statutes . . . .").

     Importantly, the Murdock court did not ignore the distinct
natures of the guilt and responsibility phases, but instead
rested its holding in part on the fact that the purpose of the
jury waiver statute is fulfilled both when the jury is sitting
as fact-finder (in the guilt phase) and when it is sitting as
"moral decision maker" (in the responsibility phase).       See
Murdock, 238 Wis. 2d 301, ¶26.


                                     30
                                                                    No.     2013AP1424-CR



but to a defendant's future institutional treatment.                           See, e.g.,

Taylor     v.    Illinois,     484    U.S.      400,    407   (1988)    ("[O]ur       cases

establish, at a minimum, that criminal defendants have the right

to the government's assistance in compelling the attendance of

favorable witnesses at trial and the right to put before a jury

evidence        that   might    influence         the     determination        of   guilt"

(emphasis added) (citation omitted).).                        The right to testify,

insofar as it is grounded in the Compulsory Process Clause, is

the right to testify in defense against charges of criminal

wrongdoing.23

     ¶46        The Rock Court clearly carved out a specific right to

testify: one applicable to criminal defendants with regard to

matters pertinent to criminal liability.                        As we will discuss

shortly, the Fourteenth Amendment's guarantee of due process——

which     is    also   a   basis     of   the     right    identified     by    the     Rock

Court——still has application to the responsibility phase.                               But

given the previous discussion, we cannot conclude that the right

which     the     Rock     court     identified——the          fundamental       right    of
defendants to testify in their own behalf in a criminal case——of




     23
       The same reasoning applies to the guarantee of compulsory
process in Article I, Section 7 of the Wisconsin Constitution.


                                             31
                                                                      No.    2013AP1424-CR



necessity applies to a proceeding which is neither criminal in

nature nor criminal in purpose.24

  D.    Whether Any Constitutional Right to Testify Exists at the
         Responsibility Phase of Bifurcated NGI Proceedings
       ¶47     Importantly, the Rock Court identified a third basis

for    its     right    to    testify:   the          Due   Process   Clause       of   the

Fourteenth Amendment, Rock, 483 U.S. at 51, which provides that

no     state    shall    "deprive     any        person     of   life,      liberty,     or

property,      without       due   process       of    law . . . ."         U.S.    Const.




       24
       In explaining that a criminal defendant's fundamental
"right to testify in her own behalf at a criminal trial" is
premised in multiple constitutional guarantees, the Rock Court
indicated that the right is properly understood as tied to a
specific type of testimony——testimony of a criminal defendant
pertaining to that defendant's criminal guilt——rather than
simply to any specific proceeding or set of proceedings, however
denominated. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987).

     Whatever might be said in defense of the "broad principles"
enunciated in Rock, see id. at 64 (Rehnquist, C.J., dissenting),
we are mindful in considering Rock's sources-plus-consensus
methodology that "the main danger in judicial interpretation of
the Constitution . . . is that the judges will mistake their own
predilections for the law. . . .    It is very difficult for a
person to discern a difference between those political values
that he personally thinks most important, and those political
values that are 'fundamental to our society.'" Antonin Scalia,
Originalism: the Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
Rock does not provide a basis for extending the specific
protection it identified to a special proceeding not criminal in
nature or purpose and not mandated by the federal or state
constitutions.


                                            32
                                                             No.   2013AP1424-CR



amend. XIV.25    In the words of the Court, "A person's right to

reasonable notice of a charge against him, and an opportunity to

be heard in his defense——a right to his day in court——are basic

in our system of jurisprudence. . . ."               Rock, 483 U.S. at 51

(citing In re Oliver, 333 U.S. 257, 273 (1948)).                    The Court

specifically    pointed   out   in   a    footnote    that     "[t]his    right

reaches beyond the criminal trial: the procedural due process

constitutionally    required    in    some   extrajudicial         proceedings

includes the right of the affected person to testify."                   Id. at

51, n.9.26




     25
       Under   the   doctrine   of   incorporation, all   three
constitutional sources of the right to testify as applied in
this case are based in the Due Process Clause of the Fourteenth
Amendment.   See, e.g., McDonald v. City of Chicago, 561 U.S.
742, 763 (2010). This section involves discussion of the right
to due process in the sense of due process unconnected to any
specific guarantee of the Bill of the Rights.
     26
       It was to this due process guarantee of the opportunity
to be heard and offer testimony that we compared, in Denson, the
Wisconsin Constitution's own guarantee that "[i]n all criminal
prosecutions the accused shall enjoy the right to be heard by
himself and counsel . . . ." Wis. Const. art. I, § 7; see State
v. Denson, 2011 WI 70, ¶51, 335 Wis. 2d 681, 799 N.W.2d 681
(citing Wis. Const. art. I, § 7).

                                                                   (continued)
                                     33
                                                                  No.     2013AP1424-CR



      ¶48   Although the fundamental right of criminal defendants

to testify in their own defense, even as based in the Fourteenth

Amendment,    does    not     apply    in     the      responsibility       phase    of

bifurcated NGI proceedings because that phase is not relevant to

criminal liability, the phase is not necessarily exempted from

the broad mandates of the Due Process Clause.                  "The requirements

of   procedural   due      process    apply . . . to        the     deprivation      of

interests encompassed by the Fourteenth Amendment's protection

of liberty and property."            Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 569 (1972).                    And where the Due Process

Clause   applies,     it     requires,      "at    a   minimum,     that    absent   a

countervailing       state     interest       of       overriding       significance,


      This court has never concluded that a criminal defendant's
"right to be heard by himself and counsel" provides, of its own
force, the same fundamental right to testify in one's own behalf
at a criminal trial as that identified by the Supreme Court in
Rock.     Given that criminal defendants as a group were not
competent to testify as witnesses in Wisconsin until 1869——
decades after the Wisconsin Constitution was adopted——the
soundness of any such conclusion would be questionable.    State
v. Albright, 96 Wis. 2d 122, 127, 291 N.W.2d 487 (1980); In re
Estate of Johnson, 170 Wis. 436, 436, 175 N.W. 917 (1920);
Ferguson v. Georgia, 365 U.S. 370, 598 (1961). Lagrone does not
offer any evidence in support of such a view.          See also
Mitchell, 526 U.S. at 332 (Scalia, J., dissenting) ("[C]ommon-
law evidentiary rules prevented a criminal defendant from
testifying in his own behalf even if he wanted to do so. That
is not to say, however, that a criminal defendant was not
allowed to speak in his own behalf . . ." (emphasis added)
(citation omitted).); Moore v. State, 83 Wis. 2d 285, 298, 265
N.W.2d 540 (1978) ("Every person sui juris, who is charged with
crime, has the right to try his own case if he so desires. The
constitution guarantees him the right to be heard 'by himself'
as well as by counsel. . . " (first emphasis added) (citations
omitted).).


                                         34
                                                                            No.     2013AP1424-CR



persons forced to settle their claims of right and duty through

the judicial process must be given a meaningful opportunity to

be heard."       Boddie v. Connecticut, 401 U.S. 371, 377 (1971); see

also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

313 (1950) ("Many controversies have raged about the cryptic and

abstract words of the Due Process Clause but there can be no

doubt that at a minimum they require that deprivation of life,

liberty or property by adjudication be preceded by notice and

opportunity          for    hearing       appropriate          to     the    nature      of   the

case."); Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353

(1992).

       ¶49     Although       the     State       has        established       that      Lagrone

committed       the        criminal       conduct        alleged,           "the    successful

assertion of the affirmative [NGI] defense in phase two results

in a noncriminal-sanction disposition."                             Koput, 142 Wis. 2d at

388.      We    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,          at    the    responsibility          phase    of

bifurcated NGI proceedings.                      See    Kentucky Dep't of Corr. v.

Thompson,       490    U.S.    454,       460    (1989)       (procedural          due   process

claims are assessed "in two steps: the first asks whether there

exists a liberty or property interest which has been interfered

with by the State; the second examines whether the procedures

attendant        upon         that        deprivation             were      constitutionally

sufficient" (citations omitted)); Langenbach, 247 Wis. 2d 933,
¶13 (noting the "legitimate impending threat of the deprivation
                                                 35
                                                               No.    2013AP1424-CR



of [the defendant's] liberty, either through commitment to a

mental hospital or imprisonment").

      ¶50    We can assume this fact because Lagrone was indeed

offered such an opportunity to be heard and to offer testimony.

Lagrone was present at a two-day proceeding during which several

individuals     presented    testimony        relevant   to   Lagrone's     mental

responsibility.      The circuit court asked Lagrone directly at the

close of evidence whether he agreed with his attorney that he

did   not    wish   to   present   any    further    evidence,       and   Lagrone

responded in the affirmative.27           We therefore need not determine

whether Lagrone possessed a due process right to an opportunity

to be heard and offer testimony at the responsibility phase of a

bifurcated NGI proceeding, and the contours of such a right,

because he was afforded such an opportunity in this case.28

         E. Whether a Circuit Court is Required to Conduct a
      Right-to-Testify Colloquy at the Responsibility Phase of
        Bifurcated NGI Proceedings and Whether an Evidentiary
          Hearing is Required When a Defendant Alleges Waiver
                  of a Right to Testify at That Phase



      27
           See supra n.13.
      28
        We do not in any way disavow our recent decision in
Magett.    In that case we examined, among other things, the
ability   of   criminal  defendants  to   testify  during   the
responsibility phase, and the relative value of such testimony.
See Magett, 355 Wis. 2d 617, ¶¶7-8.     We also discussed the
proper timing of dismissals or directed verdicts during the
responsibility phase. See id., ¶9. The case did not, however,
involve an inquiry into the separate question of whether a
defendant has a constitutional right to testify at the
responsibility phase.


                                         36
                                                                     No.     2013AP1424-CR



       ¶51   As stated, the fundamental right to testify in one's

own behalf as a defendant in a criminal case does not exist at

the responsibility phase of bifurcated NGI proceedings because

that    phase   is    a   noncriminal       proceeding        to    which    defendants

possess no constitutional right.                At most, Lagrone possessed a

general due process right to be heard and offer testimony during

the responsibility phase, just as an individual might in other

noncriminal       proceedings        such       as,     for        example,      certain

proceedings      under     Wis.     Stat.      ch.    980,     which       governs    the

commitment of sexually violent persons.                      See State v. Burris,

2004 WI 91, ¶22, 273 Wis. 2d 294, 682 N.W.2d 812; see also Rock,

483 U.S. at 51 n.9 (citations omitted); State ex rel. Vanderbeke

v.   Endicott,    210     Wis. 2d 502,       513-14,     563       N.W.2d 882     (1997)

("Revocation of probation is a civil proceeding in Wisconsin.                           A

probationer is therefore not entitled to the full panoply of

rights accorded persons subject to criminal process.                         It is well

settled, however, that a probationer is entitled to due process

of law before probation may be revoked.").
       ¶52   Any such right is not independently grounded in the

Fifth or Sixth Amendments and is not the fundamental right for

which    this    court     in   Weed    established       the       requirement      that

circuit      courts       conduct      waiver        colloquies       with      criminal

defendants.      See Weed, 263 Wis. 2d 434, ¶40.                    As we recognized

in Weed, "only a minority of jurisdictions impose an affirmative

duty on circuit courts to conduct an on-the-record colloquy to

ensure that a criminal defendant is knowingly, intelligently,
and voluntarily waiving his or her right to testify."                                Id.,
                                          37
                                                                          No.    2013AP1424-CR



¶41.      Given     that       the    general       practice       with    regard       to    the

fundamental right of criminal defendants to testify in their own

behalf is not to require a colloquy, we decline to create such a

requirement where a fundamental right has not been identified.

It is difficult to see why such a requirement would not be

logically applicable to many other noncriminal proceedings.

       ¶53    We emphasize again that Lagrone does not challenge the

plea   colloquy         that    occurred       during       the    guilt    phase       of    his

bifurcated        NGI   proceedings,          and    does    not    argue       that    he    was

unaware that, by pleading guilty to the criminal charges against

him,   he    was    waiving      his    fundamental          right    to    testify          at    a

criminal     trial      pertaining       to    the    validity       of    those       charges.

Nothing      in   this    opinion      affects       the     fundamental        right        of    a

criminal defendant to testify in his or her own behalf at a

criminal      trial,      and    nothing       in    this    opinion       affects       Weed's

instruction that a right-to-testify colloquy occur at such a

proceeding.        See id., ¶2.         But because this fundamental right is

not applicable in the responsibility phase of bifurcated NGI
proceedings, we decline to mandate that a colloquy occur at that

phase.        While      the    responsibility          phase       is     undoubtedly            an

important proceeding for criminal defendants, any requirement of

a colloquy in that phase should come from the legislature.                                        We

note, however, that it may well be the best practice for circuit

courts to ask defendants directly at the responsibility phase

whether      they       wish    to     testify.            See,     e.g.,       Denson,       335

Wis. 2d 681,        ¶¶58, 67         (recommending an on-the-record colloquy


                                               38
                                                          No.   2013AP1424-CR



regarding a criminal defendant's right not to testify as the

"better practice").

    ¶54       Here, without proceeding further to the responsibility

phase of the trial, Lagrone would stand convicted and poised for

sentencing.      The responsibility phase is, as a practical matter,

quite distinct from the guilt phase.            If the State prevails at

the guilt phase, the defendant, who then bears the burden of

proof, would seek to prove that he or she should receive mental

treatment rather than a criminal sentence.             Simply stated, the

responsibility phase, wherein the defendant bears the burden of

proof,   is    altogether   different    from   the   guilt   phase   of   the

trial.

    ¶55       To the degree that Lagrone was owed an opportunity to

be heard, he was granted such an opportunity.             Lagrone has not

made the requisite showing for an evidentiary hearing; more is

required.       See State v. Allen, 2004 WI 106, ¶¶9, 12-13, 274

Wis. 2d 568, 682 N.W.2d 433; cf. State v. Balliette, 2011 WI 79,

¶¶3, 18, 336 Wis. 2d 358, 805 N.W.2d 334.              With regard to the
strategic decision of the specific evidence a defendant will

present during the responsibility phase in order to meet his or

her burden, "the decision whether to testify should be made by

the defendant after consulting with counsel," but "counsel, in

the absence of the express disapproval of the defendant on the

record during the pretrial or trial proceedings, may waive" any

right to testify that a defendant possesses at that hearing.

Albright, 96 Wis. 2d at 133.


                                    39
                                                           No.    2013AP1424-CR



       ¶56   Here, Lagrone's attorney informed the circuit court at

the close of evidence that Lagrone had no further evidence to

present.      Lagrone, when questioned by the circuit court on that

point, agreed.       The record is devoid of any indication that

Lagrone voiced a wish at trial to testify, or that the circuit

court or Lagrone's attorney prevented Lagrone from testifying.29

See id.      Lagrone's sole allegation is that he did not understand

that    he   could   testify,   and   he   does    not   even    explain   the

substance of his proposed testimony.              Without more, we see no

need to remand for an evidentiary hearing.               The postconviction

court did not erroneously exercise its discretion in denying

Lagrone's postconviction motion, because Lagrone was afforded


       29
       As discussed, supra n. 11, certain of the documents
signed by Lagrone prior to the responsibility phase, such as the
plea questionnaire form, contain handwritten notes in the
margins potentially relevant to Lagrone's opportunity to
testify. For instance, on the plea questionnaire form under the
heading "Constitutional Rights," and next to the checked box
reading "I give up my right to testify and present evidence at
trial," the following is handwritten: "True for Phase I, not for
II." Although the notes do not affect the outcome of this case,
we observe that, if anything, they suggest that Lagrone and his
counsel indeed understood that Lagrone could present evidence
and testimony during the responsibility phase.

     The provenance of the notes is unknown, and Lagrone argues
before this court that their precise meaning is ambiguous, but
this claim alone does not justify remand for an evidentiary
hearing. Lagrone's postconviction motion does not set forth any
factual allegations relevant to why the presence of the
handwritten notes would mandate a hearing; he simply states in
the motion, "[T]he plea questionnaire and waiver of rights form
for phase one note[s] that [Lagrone] was not giving up the right
to testify in the mental responsibility phase."


                                      40
                                                                              No.    2013AP1424-CR



all the process he was due.                     See Allen, 274 Wis. 2d 568, ¶¶9,

12-13 (if postconviction motion does not raise facts sufficient

to   entitle       movant        to     relief,      or     presents         only     conclusory

allegations,        or    if    record       conclusively       demonstrates           that     the

defendant      is        not    entitled       to         relief,    circuit         court      has

discretion        to     deny        evidentiary      hearing,        which         decision     is

reviewable under            deferential erroneous exercise of discretion

standard).

                                        V.    CONCLUSION

     ¶57     We     conclude          that,    although        a     better         practice,     a

circuit    court       is      not    required       to    conduct       a   right-to-testify

colloquy    at      the     responsibility           phase     of    a       bifurcated      trial

resulting from a plea of not guilty by reason of mental disease

or defect.        Further, Lagrone is not entitled to an evidentiary

hearing because he has not made the requisite showing for such a

hearing.     Accordingly, we affirm the decision of the court of

appeals.

     By the Court.— The decision of the court of appeals is
affirmed.




                                                41
                                                                   No.    2013AP1724.awb




      ¶58      ANN   WALSH    BRADLEY,     J.     (dissenting).           At   issue   in

this case is whether a circuit court is required to conduct an

on-the-record        colloquy    regarding       the    waiver    of     the   right   to

testify at the responsibility phase of a bifurcated criminal

trial.

      ¶59      Lagrone asserts that he had a right to testify at the

responsibility phase of a bifurcated criminal trial and that an

on-the-record right to testify colloquy is required.                           Even the

State concedes that he has such a right, but contends that it is

not a fundamental right requiring a colloquy.

      ¶60      Ultimately     the   majority      concludes       that    "although     a

better practice," a circuit court is not required to conduct a

right     to   testify     colloquy   at    the    responsibility         phase   of    a

bifurcated trial.            In reaching its conclusion that no colloquy

is   required,       the   majority      skews    the    record    and     contravenes

controlling precedent.

      ¶61      Contrary to the majority, I conclude that precedent
mandates more than a "better practice" admonition.                             Both the

United States Supreme Court and Wisconsin precedent support the

conclusion that there is a fundamental right to testify at the

second phase of a bifurcated criminal trial conducted pursuant

to Wis. Stat. § 971.165(1)(a).1                 A right to testify colloquy is

      1
       When a defendant pleads not guilty by reason of mental
disease or defect, the circuit court follows the procedure for a
bifurcated trial set forth in Wis. Stat. § 971.165(1)(a) which
provides:

                                                                           (continued)
                                           1
                                                                No.    2013AP1724.awb



required     in     order    to    ensure       that   a   defendant    knowingly,

intelligently and voluntarily waived the fundamental right to

testify.2    I would reverse the court of appeals and remand to the

circuit     court    for    an    evidentiary      hearing.3     Accordingly,      I

respectfully dissent.




     There shall be a separation of the issues with a
     sequential order of proof in a continuous trial. The
     plea of not guilty shall be determined first and the
     plea of not guilty by reason of mental disease or
     defect shall be determined second.

     If the defendant pleads guilty or is found guilty by a jury
during the first phase, the trial proceeds to the second phase.
In the second phase, a jury determines whether "as a result of
mental disease or defect the person lacked substantial capacity
either to appreciate the wrongfulness of his or her conduct or
conform his or her conduct to the requirements of law."     Wis.
Stat. § 971.15(1).
     2
       Lagrone also asserts a claim under the Wisconsin
Constitution.     Article   I,   Section  8   of  the  Wisconsin
Constitution states in part: "No person . . . may be compelled
in any criminal case to be a witness against himself or
herself." However, he does not argue this claim separately from
his federal constitutional claim.    Accordingly, we address the
arguments as presented by Lagrone.
     3
       Pursuant to State v. Garcia, 2010 WI App 26, ¶¶1, 9, 14,
323 Wis. 2d 531, 779 N.W.2d 718, when a circuit court fails to
conduct a colloquy regarding the waiver of the right to testify,
the defendant's remedy is an evidentiary hearing. The harmless
error analysis set forth in State v. Nelson, 2014 WI 70, 355
Wis. 2d 722, 849 N.W.2d 317, does not apply because Lagrone
filed his motion prior to this court's decision in Nelson.
Additionally, Nelson arguably is distinguishable because it
applies to the denial of a defendant's assertion of the right to
testify, not a circuit court's failure to conduct a colloquy.
Id. at ¶15-16.


                                            2
                                                                  No.    2013AP1724.awb



                                         I.

    ¶62     At the outset, I observe that the majority opinion

skews the evidentiary record in this case.                    It obfuscates an

important fact and minimizes others.

    ¶63     The   majority    obfuscates        the    fact   that       the   circuit

court    failed   to    conduct   a   colloquy        regarding    the       waiver    of

Lagrone's right to testify at either phase of the bifurcated

trial.     It correctly states that at the responsibility phase the

circuit court neither informed Lagrone that he had a right to

testify, nor asked Lagrone whether he was waiving his right to

testify.      See      Majority   op.,       ¶13.       However,        it   fails    to

acknowledge that at the guilt phase of the trial the circuit

court also failed to conduct the required colloquy regarding the

right to testify.

    ¶64     The colloquy with Lagrone during the guilt phase of

the bifurcated trial is buried in a footnote in the majority

opinion.    See majority op., ¶11 n.12.               The circuit court did not

question Lagrone about whether he understood that he was waiving
his right to testify:

    Do you understand that by pleading guilty in the first
    phase of this case, you give up all those rights, like
    the right to have a trial on whether you committed
    these crimes and the right to force the State to prove
    you committed these crimes and the right to present
    witnesses about whether you committed the crimes, all
    those rights, did you understand all those and
    understand that you're giving them up?    Majority op,
    ¶11 n. 12.
    ¶65     Under State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434,
666 N.W.2d 485, this was an insufficient plea colloquy.                              Weed

                                         3
                                                                        No.   2013AP1724.awb



requires that a circuit court conduct an on-the-record, right to

testify      colloquy.         "The    colloquy          should   consist     of    a    basic

inquiry to ensure that (1) the defendant is aware of his or her

right to testify and (2) the defendant has discussed this right

with his or her counsel."              Id., ¶43.

       ¶66    The    majority        skirts    this       deficiency    by    telling      the

reader only that "Lagrone does not challenge the plea colloquy

that   occurred       during    the     guilt       phase    of   his    bifurcated        NGI

proceedings."             Majority      op.,       ¶4.       Further     obscuring         the

deficiency      in    another        footnote,       the     majority     explains        that

"nothing in this opinion affects our instruction in State v.

Weed that circuit courts conduct an on-the-record colloquy at a

criminal      trial,      or    at     the    guilt       phase    of   bifurcated         NGI

proceedings,         to    ensure      that        the     defendant     is    knowingly,

intelligently, and voluntarily waiving his or her fundamental

right to testify."          Majority op., ¶5 n.3.

       ¶67    Although Lagrone does not challenge the plea colloquy

at the guilt phase of the trial, it is problematic to obscure
this significant deficiency from the reader.                             The lack of a

colloquy regarding Lagrone's right to testify and waiver of that

right at the guilt phase of the bifurcated trial amplifies the

absence of a colloquy at the responsibility phase.                            Without any

colloquy at either stage in the proceedings, there is nothing in

the record that indicates Lagrone was knowingly, intelligently

and voluntarily waiving his right to testify.

       ¶68    Perhaps      because       there       is     nothing     in    the       record
regarding Lagrone's waiver of his right to testify, the majority
                                               4
                                                                          No.     2013AP1724.awb



relies on a hand-written note on a plea advisement and a waiver

of rights form to suggest that Lagrone knew he had a right to

testify.        Tucked       away      in    another       footnote,        the     plea       form

discussion is minimized along with the majority's explanation

for that form.        See majority op., ¶¶11 n.11, 56 n.29.

      ¶69 As relevant to the right to testify, it provides:




The   court     of    appeals       interpreted            the    hand-written           notation

("True   for       phase    I,   not    for        II")    to    mean    that     Lagrone       was

preserving      his   right      to    testify        at    the    second       phase     of   the

trial.        State v. Lagrone, No. 2013AP1424-CR, unpublished slip

op., ¶18 (Wis. Ct. App. Apr. 7, 2015) (explaining "Lagrone was

giving up his right to testify in the first phase but not the

second phase of the proceeding.").

      ¶70     Jettisoning the plain meaning interpretation of the

court    of    appeals,      the      majority        instead     grasps       at    a   curious

alternative interpretation.                  By conflating the discreet right of
the   defendant       to    testify         with     the   general       right      to   present

evidence and testimony, the majority interprets the hand written

notation to mean "that Lagrone and his counsel indeed understood

that Lagrone could present evidence and testimony during the

responsibility phase."              Majority op., ¶56 n.29.

      ¶71     If    the     majority        is     going    to    rely    on      its    curious

interpretation of a hand-written note to assert that Lagrone

fully     understood         his       right         to     testify       and       knowingly,
intelligently         and     voluntarily            waived       that     right         at    the

                                                 5
                                                                               No.    2013AP1724.awb



responsibility phase, then it should not minimize this part of

its analysis by relegating it to a footnote.                           Perhaps by tucking

the discussion of the form in a footnote, the majority indicates

that it is aware of how slender the reed is upon which it rests

its     assertion        that       Lagrone        knowingly,         intelligently              and

voluntarily waived his right to testify.

                                              II.

      ¶72      Not only does the majority opinion skew the record, it

contravenes controlling precedent.                       Unlike the majority, I would

follow      well-established           United        States          Supreme           Court     and

Wisconsin          precedent     in    reaching           the    conclusion             that     the

fundamental          constitutional      right       of    a     criminal            defendant   to

testify on one's behalf applies during the second phase of a

bifurcated criminal trial.                Any waiver of that right must be

subjected to an on-the-record colloquy to ensure that the waiver

is knowingly, intelligently and voluntarily made.

      ¶73      The     legal    precedent      underpinning               my     conclusion      is

straightforward.             Although the right to testify at the second
phase    of    a     bifurcated     criminal        trial       is   an    issue        of   first-

impression         before    this     court,       the    fundamental            constitutional

right of a defendant to testify on his own behalf is well-

established.           See Weed, 263 Wis. 2d 434, ¶¶39-40 (a circuit

court must conduct a personal colloquy on-the-record in order to

ensure        that     the      defendant          knowingly,         intelligently              and

voluntarily waived the fundamental right to testify).

      ¶74      In Rock v. Arkansas, the United States Supreme Court
concluded that the right to testify is a "necessary corollary to
                                               6
                                                              No.    2013AP1724.awb



the Fifth Amendment's guarantee against compelled testimony."

Rock, 483 U.S. 44, 52 (citing Harris v. New York, 401 U.S. 222,

230 (1971)).      When a criminal defendant has Fifth Amendment

privilege    against      self-incrimination,         there         is   also      a

corresponding right to testify in one's defense.4

     ¶75    As   the    Rock   court       explained,    "[e]very        criminal

defendant is privileged to testify in his own defense, or to

refuse to do so."       Id. at 53 (citing Harris, 401 U.S. at 225).

The Fifth Amendment's privilege against self-incrimination "is

fulfilled only when an accused is guaranteed the right to remain

silent unless he chooses to speak in the unfettered exercise of

his own will."         Id. (citing Malloy v. Hogan, 378 U.S. 1, 8

(1964) (emphasis removed)).       Accordingly, the choice of whether

to testify is an exercise of the constitutional privilege.                   Id.

     ¶76    In Wisconsin, the Fifth Amendment privilege applies

beyond the guilty phase of the bifurcated criminal trial.5                      Over

thirty years ago, this court determined that the Fifth Amendment

privilege   "continues    at   least       until   sentencing."          State   v.


     4
       The Fifth Amendment privilege applies to the states
through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1,
6 (1964).
     5
       The majority acknowledges that Wisconsin's Fifth Amendment
jurisprudence conforms generally with the U.S. Supreme Court
jurisprudence.    See Majority op., ¶43.     As the U.S. Supreme
Court explained in Lefkowitz v. Turley, 414 U.S. 70, 77 (1973),
the    Fifth     Amendment    privilege    is    applicable    in
"any [] proceeding, civil or criminal, formal or informal, where
the answers might incriminate [an individual] in future criminal
proceedings."


                                       7
                                                                      No.     2013AP1724.awb



McConnohie, 121 Wis. 2d 57, 63, 358 N.W.2d 256 (1984).                                Twenty

years ago, this court determined that a defendant retains his or

her Fifth Amendment privilege while an appeal is pending or

before the time for an appeal as of right or plea withdrawal has

expired.         State v. Marks, 194 Wis. 2d 79, 92, 533 N.W.2d 730

(1995).

      ¶77    For     the    past     fifteen       years,      it     has     been     well-

established that the Fifth Amendment applies to the second phase

of a bifurcated criminal trial.                    State v. Langenbach, 2001 WI

App 222, ¶9, 247 Wis. 2d 933, 634 N.W.2d 916.                        As the Langenbach

court      explained,       "[b]ecause       there       is    a     possibility           that

Langenbach could be sentenced in this matter if the jury finds

him   to    be    mentally       responsible       for   his       actions,     his    Fifth

Amendment privileges survive his no contest pleas."                         Id.

      ¶78    Thus, the inexorable conclusion is that Lagrone has a

Fifth Amendment right to testify at the second phase of his

bifurcated       criminal    trial.      The       United      States    Supreme       Court

instructs that the right to testify is a "necessary corollary to
the Fifth Amendment's guarantee against compelled testimony."

Rock, 483 U.S. at 52 (citing Harris, 401 U.S. at 230).                                 Under

Wisconsin law, the Fifth Amendment privilege against compelled

testimonial        self-incrimination            continues      through       the     mental

responsibility         stage       of    a        bifurcated         criminal         trial.

Langenbach, 247 Wis. 2d 933, ¶20.

      ¶79    Despite       the   overwhelming       weight      of    the     law     to    the

contrary, the majority concludes that the fundamental right to
testify on one's own behalf at a criminal trial does not extend
                                             8
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to    the      responsibility        phase   of     bifurcated        criminal       trial.

Majority       op.,    ¶41.      As      observed    above,      in     reaching      this

conclusion the majority contravenes both Unites States Supreme

Court precedent and Wisconsin law.

      ¶80      The majority protests             Rock's    determination that the

right     to    testify     is   a    "necessary      corollary"        to     the   Fifth

Amendment privilege against self-incrimination.                              According   to

the   majority,       the     conclusion     that    the    right       to    testify    is

available wherever the Fifth Amendment privilege is available

"has no basis in the federal constitution and is impracticable."

Majority op., ¶44.             In its attempt to deny Lagrone his Fifth

Amendment right to testify here, the majority creates a straw

man out of the fear that every litigant in every proceeding——

civil and criminal——will now have a right to testify.

      ¶81      The    majority's      fear   of    unlimited      and       impracticable

expansion of the Fifth Amendment right to testify is unfounded.

Lagrone never argues that the Fifth Amendment fundamental right

to testify is applicable to every proceeding.                     Rather, the issue
before the court in this case is limited to whether the Fifth

Amendment right to testify applies to the second phase of a

bifurcated       criminal      trial,     not    whether    it    applies       to   every

imaginable proceeding.

      ¶82      Relying on State v. Magett, 2014 WI 67, 355 Wis. 2d

617, 850 N.W.2d 42 and State v. Koput, 142 Wis. 2d 370, 418

N.W.2d 804 (1988), the majority misconstrues Wisconsin law by

arguing that the responsibility phase of the bifurcated trial is
not   a     criminal     trial     and    therefore       the    rights       afforded    a
                                             9
                                                            No.    2013AP1724.awb



criminal defendant do not apply.6           According to the majority, the

fundamental right to testify identified by the Rock court "is

not some generalized right to testify; it is instead '[t]he

right to testify on one's own behalf at a criminal trial.'"

Majority op., ¶40 (citing Rock, 483 U.S. at 51).

      ¶83   The    majority    disregards     Wisconsin   case    law    that    is

directly on point.       In State v. Murdock, the court of appeals

explained    the    interconnection     between    the    first    and    second

phases of a bifurcated criminal trial.             2000 WI App 170, ¶¶24-

25, 238 Wis. 2d 301, 617 N.W.2d 175.

      ¶84   Relying on Koput, the Murdock court explained that the

mental responsibility phase could have evolved as an entirely

separate    procedure   from    the   guilt    phase.     Id.,     ¶24    (citing

Koput, 142 Wis. 2d at 394).           As Murdock correctly acknowledged,

the   statutes     governing    the   bifurcated    trial    for    NGI    pleas

remains in Chapter 971, which governs criminal procedure.                       The

legislature has "kept the responsibility phase and guilt phase

attached in procedure even as they are detached in nature and
purpose."     Id.     Thus, the Murdock court considered that "the


      6
       In State v. Koput, this court determined that "the
responsibility phase of the bifurcated trial is not an integral
part of the criminal trial, but is rather a special proceeding
in the criminal process. . . ."     142 Wis. 2d 370, 374, 418
N.W.2d 804 (1988).    More recently, in State v. Magett, this
court explained that the "history of trials involving NGI pleas
demonstrates that the current responsibility phase has undergone
a transformation from a criminal proceeding to something close
to a civil trial." 2014 WI 67, ¶39, 355 Wis. 2d 617, 850 N.W.2d
42.


                                       10
                                                                  No.    2013AP1724.awb



responsibility phase has not been procedurally removed from the

criminal proceedings."        Id. at ¶25.

      ¶85   The    majority   fails       to   address     Murdock       head-on   and

instead attempts to distinguish it in a footnote.                       See Majority

op., ¶44 n.22.        According to the majority, the fact that the

guilt and responsibility phases are attached in procedure is

much more relevant to the question in Murdock of whether the

jury waiver statute applies equally to both phases than it is to

the constitutional question here.               Id.   The majority's analysis

of Murdock is cursory and unpersuasive because it provides no

reason why the wavier of a right might be different in this case

as it relates to the bifurcated procedure.

      ¶86   Furthermore,      in    Langenbach,       the       court    of    appeals

explained that the responsibility phase "remains a part of the

criminal case in general."              247 Wis. 2d 933, ¶19.            In the same

footnote, the majority dispenses with Langenbach.                       Majority op.,

¶44 n.22.     It argues that a statement in the responsibility

phase could only be incriminating for the purpose of some other
proceeding and that "[i]n any event, that line of reasoning was

apparently   not     essential     to    the   Langenbach        court's      holding."

Id.   Thus, the majority does not overrule either Langenbach or

Murdock, but instead dismisses both opinions in a footnote.

      ¶87   Rather     than   follow        Murdock       and     Langenbach,      the

majority    relies    on   differences         relating     to    the     defendant's

burden of proof between the two phases of a bifurcated criminal




                                          11
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trial in order to argue that the second phase is not part of the

criminal trial.7    However, as Justice Gableman stated during oral

argument, regardless of the different burden the stakes are the

same:

      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.

      ¶88   Not only is the potential outcome after both phases of

the trial the same, but the defendant's burden of proof in the

second phase may make his or her testimony even more critical

than during the first phase.      Given that expert testimony is not

a prerequisite to proving a mental disease or defect, it may be

the   defendant's   own   testimony    that   provides   the   most   potent

testimony in meeting the burden of proof.          See Magett, 355 Wis.

2d 617, ¶41-44.     By testifying, a defendant has the opportunity


      7
       First, the defendant, rather than the State, bears the
burden of establishing mental disease or defect. See Wis. Stat.
§ 971.15(3). Second, the defendant's burden is "to a reasonable
certainty by the greater weight of the credible evidence,"
rather than "beyond a reasonable doubt."        Id.   Third, the
defendant needs only a five-sixths verdict, rather than a
unanimous jury.    Magett, 355 Wis. 2d 617, ¶39.      Fourth, in
contrast to a criminal trial, a judge may grant a motion to
dismiss the NGI defense or direct a verdict in favor of the
state if the defendant does not meet his burden." Id.


                                      12
                                                        No.    2013AP1724.awb



to take the stand, face the jury and explain his side of the

events, hoping to persuade those who sit in judgment.

       ¶89   The majority’s failure to recognize that the stakes

are the same at both phases of a bifurcated criminal trial also

impairs the majority's due process analysis.          Its analysis rests

in part on the faulty premise that it need not address the

contours of Lagrone's due process right to testify because "he

was afforded such an opportunity in this case."               Majority op.,

¶50.    It seems to believe that because the circuit court asked

whether Lagrone wished to present any further evidence, he could

infer that the circuit court was asking whether he wished to

testify. The analysis fails to recognize that the right to offer

evidence and the right to testify on one's behalf are separate

rights.

       ¶90   Although the majority concedes that the responsibility

phase is "not necessarily exempted from the broad mandates of

the Due Process Clause," its faulty premise leads the majority

to   abandon   the    Supreme   Court's   well-established    two-step   due
process test.        Majority op., ¶48.     In a procedural due process

analysis, the court asks first whether a liberty or property




                                     13
                                                         No.   2013AP1724.awb



interest exists which has been interfered with by the State.8

Kentucky Dept. of Corr. V. Thompson, 490 U.S. 454, 460 (1989).

Next, the court examines whether the procedures employed were

constitutionally sufficient.       Id.

    ¶91    The first step is readily met here.             As the United

States   Supreme   Court    has   determined,    procedural    due   process

protections apply when the defendant's interest is the loss of

liberty as a result of incarceration.           See, e.g., Morrissey, 408

U.S. 471, 481-82 (1972); see also Gagnon v. Scarpelli, 411 U.S.

778, 781-82 (1973).        The second phase of a bifurcated criminal

trial undeniably results in a loss of liberty.            Either Lagrone

will be committed to an institution for mental health treatment

or he will be sent to prison.

    ¶92    In its conclusory treatment of the second step, the

majority errs because it does not analyze whether the procedures

employed   were    constitutionally       sufficient.    Although      cases

involving parole or probation may have required only a hearing

with the opportunity to testify, not all situations calling for
procedural safeguards require the same procedure.                Morrissey,

408 U.S. at 481.        The loss of liberty for Lagrone is even

    8
       With respect to the first step of the analysis, it is
well-established that criminal defendants have a due process
right to testify at a variety of stages during criminal
proceedings.   See, e.g., Boardman v. Estelle, 957 F.2d 1523,
1524 (9th Cir. 1992) (sentencing); Ashe v. North Carolina, 586
F.2d 334, 336 (4th Cir. 1978) (sentencing); Gagnon v. Scarpelli,
411 U.S. 778, 782, 786 (1973) (probation revocation); Morrissey
v. Brewer, 408 U.S. 471, 489 (1972) (parole revocation); see
also Rock, 483 U.S. at 51 n.9.


                                     14
                                                                               No.    2013AP1724.awb



greater than that of a parolee or probationer, because he has

not yet been sentenced or committed.                             Thus, the procedure that

is   appropriate          for    a    parolee            or     probationer          may     be    not

sufficient for a criminal defendant.

     ¶93      The majority's analysis fails to recognize that the

consequence         of     losing         at    the       responsibility             phase    of     a

bifurcated trial is the same as the consequence of losing at the

guilt phase.         The stakes are the same——its prison or not prison.

Because the stakes are the same at both the first and second

phase    of     a    bifurcated       criminal            trial,       I    conclude       that    due

process    requires        the    same         procedural         protection——a            right    to

testify    colloquy——at          both          phases      of    the       bifurcated       criminal

trial.

     ¶94      Contrary to the majority, I conclude that precedent

mandates more than a "better practice" admonition.                                         Both the

United States Supreme Court and Wisconsin precedent support the

conclusion that there is a fundamental right to testify at the

second phase of a bifurcated criminal trial.                                A right to testify
colloquy      is     required        in    order         to     ensure      that     a     defendant

knowingly, intelligently and voluntarily waived the fundamental

right to testify.               I would reverse the court of appeals and

remand     to       the    circuit        court          for    an     evidentiary          hearing.

Accordingly, I respectfully dissent.

     ¶95      I     am    authorized           to   state       that       Justice       SHIRLEY    S.

ABRAHAMSON joins this dissent.




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