                                                             2014 WI 70

                  SUPREME COURT         OF     WISCONSIN
CASE NO.:              2012AP2140-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Angelica C. Nelson,
                                 Defendant-Appellant-Petitioner.



                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 351 Wis. 2d 224, 838 N.W.2d 865
                                 (Ct. App. 2013 – Unpublished)

OPINION FILED:         July 16, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 18, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Eau Claire
   JUDGE:              William M. Gabler Sr.

JUSTICES:
   CONCURRED:          ZIEGLER, J., concurs. (Opinion filed.)
   DISSENTED:          ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Michelle L. Velasquez, assistant state public defender, and
oral argument by Michelle L. Velasquez.




       For the plaintiff-respondent, the cause was argued by Aaron
O’Neil, assistant attorney general, with whom on the brief was
J.B. Van Hollen, attorney general.
                                                                    2014 WI 70
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2012AP2140-CR
(L.C. No.    2011CF523)

STATE OF WISCONSIN                        :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                 FILED
      v.                                                    JUL 16, 2014

Angelica C. Nelson,                                            Diane M. Fremgen
                                                            Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




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



      ¶1      PATIENCE    DRAKE   ROGGENSACK,      J.     We      review        an

unpublished decision of the court of appeals1 that affirmed a

judgment the Eau Claire County Circuit Court2 entered on a jury
verdict convicting defendant Angelica Nelson of three counts of

sexual assault of a child, contrary to Wis. Stat. § 948.02(2)

(2011-12).3



      1
       State v. Nelson, No. 2012AP2140-CR, unpublished slip op.
(Wis. Ct. App. Sept. 4, 2013).
      2
          The Honorable William M. Gabler, Sr. presided.
      3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                                               No.     2012AP2140-CR



       ¶2      Our   review        concerns        the       circuit       court's     refusal     to

allow Nelson to testify at trial based on a finding that she was

not validly waiving her right against self-incrimination.                                       While

Nelson did not intend to dispute that she engaged in conduct

that    met    the     elements       of    the        crimes       charged,     she    wanted    to

testify at trial because she "want[ed] [her] side to be heard."

       ¶3      Nelson       argues       that      the         circuit       court's        decision

deprived       her     of     her     rights           under        the    Fifth,      Sixth,    and

Fourteenth      Amendments          to     the    United        States      Constitution,         and

that she is automatically entitled to a new trial because the

denial of a defendant's right to testify is not amenable to

harmless error review.

       ¶4      The   State     does        not    dispute           that   the   circuit        court

erred    in    refusing       to    allow        Nelson        to    testify.        Instead,      it

argues that harmless error review applies to that error under

the governing framework of structural and trial errors.                                           It

further       argues    that       the     error       was     harmless      because        evidence

showed that Nelson admitted to having sexual intercourse with a
14-year-old victim on three occasions, and she did not intend to

dispute that assertion if she testified.

       ¶5      We conclude that harmless error review applies to the

circuit       court's       alleged      denial        of    Nelson's       right      to   testify

because its effect on the outcome of the trial is capable of

assessment.          See Arizona v. Fulminante, 499 U.S. 279, 307-08

(1991).       We further conclude that, given the nature of Nelson's

defense and the overwhelming evidence of her guilt, the alleged


                                                   2
                                                               No.    2012AP2140-CR



error was harmless beyond a reasonable doubt.                  Accordingly, we

affirm the decision of the court of appeals.

                                I.    BACKGROUND4

      ¶6    Nelson was a friend of the family of the victim, D.M.

She   frequented     D.M's   neighborhood     and     walked    D.M.'s       younger

siblings home from school on a regular basis.                   She saw D.M.'s

mother, Tamyra, nearly every day.             When she was 18 years old,

Nelson met D.M., who was 14 years old at that time.

      ¶7    After she became acquainted with Nelson, Tamyra heard

rumors that Nelson "thought [D.M.] was hot and that [Nelson]

wouldn't mind dating him."             Tamyra told Nelson that under no

circumstances was Nelson to be involved with D.M.

      ¶8    Shortly after having this conversation with Nelson,

Tamyra heard that Nelson had not heeded her warning.                         Tamyra

sent a text message to Nelson and asked her if she had "sex"

with D.M.    Nelson responded, "You're going to be mad at me; but,

yes, I did."         After Tamyra reminded Nelson that D.M. was a

child, Nelson texted back, "I know there[] [are] laws, but he's
hot and I'm sorry."

      ¶9    Tamyra    called    the    police,      and   Officer     Dana    Brown

responded to Tamyra's home.           When Officer Brown arrived, Tamyra

was   on   the   phone   with   Nelson.      Tamyra       placed     the   call   on

speakerphone, and Officer Brown overheard Nelson admit to having

sexual intercourse with D.M. at least three times.                         He also


      4
       The following facts are taken from witness testimony at
trial unless otherwise indicated.

                                        3
                                                                  No.    2012AP2140-CR



viewed the text messages between Tamyra and Nelson on Tamyra's

phone.

      ¶10    Officer    Brown    subsequently       interviewed         D.M.    in   his

squad car.         D.M. said that he had "sex" with Nelson on three

consecutive days behind the Altoona elementary school and that

it was Nelson's idea.           While D.M. could not remember a specific

date that the assaults occurred, he recalled that he received a

citation     for    violating    curfew     just    after   the    third       assault.

Officer     Brown    testified    that    D.M.     received     that    citation       on

May 11.

      ¶11    Officer Scott Kelley followed up on Tamyra's complaint

by   interviewing      Nelson    at   the     police    station.        During       that

interview,     Nelson    told     Officer      Kelley    that     she    had    sexual

intercourse with D.M., whom she knew to be 14 years old at that

time, on three occasions behind the elementary school and that

it was D.M.'s idea.

      ¶12    The State charged Nelson with three counts of sexual

assault of a child, contrary to Wis. Stat. § 948.02(2).5                              The
amended complaint stated that the assaults occurred on May 8, 9,

and 10 of 2011.         The State came up with these dates using the

curfew citation D.M. received on the night of the third assault,

and working backwards according to D.M.'s statement that the

assaults occurred on three consecutive nights.



      5
       Wisconsin Stat. § 948.02(2) provides that "[w]hoever has
sexual contact or sexual intercourse with a person who has not
attained the age of 16 years is guilty of a Class C felony."

                                          4
                                                                       No.    2012AP2140-CR



    ¶13        Nelson    initially       pleaded      not     guilty     by    reason    of

mental disease or defect.             After the circuit court found that,

despite   some       mental     limitations,     Nelson       could     appreciate       the

wrongfulness of her conduct and conform it to the requirements

of the law, Nelson changed her plea to not guilty.

    ¶14        At trial, the State presented testimony from Tamyra,

D.M., and the two police officers.                   When the State rested, Judge

Gabler    asked      Nelson's     attorney      if    Nelson    wanted        to   testify.

Nelson said that she did.                 Judge Gabler proceeded to engage

Nelson    in    a    colloquy    about    waiving       her    right     against     self-

incrimination, which Nelson said she understood.

    ¶15        Judge Gabler also asked Nelson about the substance of

her testimony.           Nelson said that she "want[ed] to tell what

actually happened."           She also wanted to testify that she did not

unbuckle D.M.'s pants and that the assaults did not happen three

days in a row.          Judge Gabler explained that this testimony had

no bearing on the elements of the offense, and made sure that

Nelson's attorney had expressed to Nelson that "it wouldn't be a
good idea" for Nelson to testify.

    ¶16        The   circuit     court    then       found    that     Nelson      was   not

"intelligently        and   knowingly      waiving      her    right     against      self-

incrimination because she wants to testify to things that are

completely irrelevant to the two things that the [S]tate has to

prove."

    ¶17        The jury convicted Nelson on all three counts, and the

court withheld a sentence and placed her on probation for five
years.    Nelson        filed    a   motion      for     post-conviction           relief,
                                            5
                                                                          No.     2012AP2140-CR



asserting that the court violated her constitutional right to

testify     on    her    own     behalf       and    therefore,       a     new    trial    was

required.        The circuit court denied Nelson's motion.                         The court

of   appeals      affirmed,          and    we   granted         Nelson's       petition    for

review.

                                      II.    DISCUSSION

                                A.    Standard of Review

      ¶18      This     review        involves       whether       the      harmless    error

doctrine       applies    to     the        denial    of     a    defendant's       right    to

testify.       Whether a particular error is structural and therefore

not subject to a harmless error review is a question of law for

our independent review.                State v. Travis, 2013 WI 38, ¶9, 347

Wis. 2d 142, 832 N.W.2d 491.                  Because we determine that harmless

error review applies to the denial of the right to testify, we

must also decide whether the error in this case was harmless.

This likewise presents a question of law for our independent

review.     State v. Jackson, 2014 WI 4, ¶44, 352 Wis. 2d 249, 841

N.W.2d 791.
                                 B.    Right to Testify

      ¶19      A criminal defendant has a personal, fundamental right

to testify and "present his own version of events in his own

words."        Rock v. Arkansas, 483 U.S. 44, 52 (1987); State v.

Weed, 2003 WI 85, ¶39, 263 Wis. 2d 434, 666 N.W.2d 485.                                     This

right originates from several constitutional provisions:                                    the

Fourteenth Amendment, which protects a defendant's due process

right to be heard and offer testimony; the Compulsory Process
Clause    of     the    Sixth    Amendment,          which       protects    a    defendant's
                                                 6
                                                          No.       2012AP2140-CR



right to call witnesses in her favor; and the Fifth Amendment,

which protects a defendant's right against compelled testimony

"unless he chooses to speak in the unfettered exercise of his

own will."       Rock, 483 U.S. at 51-53 (quoting Harris v. New York,

401 U.S. 222, 230 (1971)) (further citation omitted).

      ¶20    The fundamental nature of the right to testify means

that it is not subject to forfeiture.            State v. Ndina, 2009 WI

21, ¶¶30-31, 315 Wis. 2d 653, 761 N.W.2d 612 ("[A] mere failure

to    object     constitutes   a   forfeiture    of   [some]       right[s]   on

appellate review. . . . [Other] rights are so important to a fair

trial that . . . [they] may . . . be waived [only] personally

and   expressly.").       It   may   not   be   waived   by    a    defendant's

silence.       Weed, 263 Wis. 2d 434, ¶39.      "[T]o ensure that a . . .

defendant is knowingly, intelligently, and voluntarily waiving

his or her right to testify," the circuit court must conduct a

limited colloquy, inquiring as to whether the defendant is aware

of his or her right against self-incrimination and has discussed

the right with counsel.        Id., ¶¶41, 43.
      ¶21    Nelson argues that the circuit court erred in this

case because, having engaged in the colloquy required by Weed,

it had no basis to find that she was not validly waiving her

right against self-incrimination.           Because the State does not

dispute that the circuit court erred, we do not decide that

issue.      At the outset, however, we briefly review the law on

that point as part of a full discussion of the issue.

      ¶22    We then proceed to Nelson's argument that denial of
the right to testify is not subject to harmless error review
                                      7
                                                              No.      2012AP2140-CR



because     it   is   not   necessarily        concerned   with   a   defendant's

chances of acquittal, but rather protects an individual's free

choice    and    dignity.        While    we    acknowledge   the     role   of    a

defendant's       autonomy       in    constitutional      jurisprudence,         we

conclude that the denial of a defendant's right to testify is

subject to harmless error review under Fulminante.

      ¶23    Finally, having concluded that the alleged error is

not   structural,      we   assess      the    testimony   Nelson     intended    to

provide in the context of the case as a whole, and conclude that

any error was harmless.

                            C.   Decision to Testify

      ¶24    A defendant has the "ultimate authority to make certain

fundamental decisions regarding the case," including whether to

testify on his or her own behalf.                 Jones v. Barnes, 463 U.S.

745, 751 (1983).        He or she retains this right "no matter how

unwise such a decision."              Ortega v. O'Leary, 843 F.2d 258, 261

(7th Cir. 1988).6       This means that a circuit court cannot refuse

to allow a defendant to testify solely because the court wishes
to protect the defendant from himself or herself.                      Quarels v.

Commonwealth, 142 S.W.3d 73, 79 (Ky. 2004); State v. Rivera, 741

S.E.2d 694, 703 (S.C. 2013).             It also means that a circuit court

must refrain from unduly influencing a defendant's decision.




      6
       See also Boyd v. United States, 586 A.2d 670, 673-74 (D.C.
1991) (quoting People v. Curtis, 681 P.2d 504, 513 (Colo. 1984))
(further citation omitted). ("The wisdom or unwisdom of the
defendant's choice does not diminish his right to make it.").

                                          8
                                                                      No.      2012AP2140-CR



      ¶25    We have addressed this latter concern in the context

of deciding whether to require circuit courts to engage in a

colloquy to determine if a defendant is validly waiving the

right to testify, or to refrain from doing so.                           First, in Weed,

we   noted   "valid"     concerns      about    influencing          a    decision        that

rests with the defendant.              Weed, 263 Wis. 2d 434, ¶41.                         The

United States Court of Appeals for the First Circuit succinctly

summarized those concerns as follows:

      To require the trial court to follow a special
      procedure, explicitly telling defendant about, and
      securing an explicit waiver of, a privilege to testify
      . . . could inappropriately influence the defendant to
      waive his constitutional right not to testify, thus
      threatening the exercise of this other, converse,
      constitutionally explicit, and more fragile right.
Siciliano     v.    Vose,       834    F.2d     29,        30   (1st          Cir.   1987).

Notwithstanding         these    concerns,          we     decided       to     require     a

colloquy, as a "simple and straightforward" exchange would not

sway a defendant.           Weed, 263 Wis. 2d 434, ¶41.                        In a later

decision,     however,     we   declined       to    require        circuit     courts      to

engage in a similar colloquy for a defendant's decision not to

testify because "inquiry into whether the defendant is aware of

his or her corollary right not to testify runs a real risk of

interfering with defense strategy and inadvertently suggesting

to   the    defendant    that    the   court        disapproves          of   his    or    her

decision to testify."            State v. Denson, 2011 WI 70, ¶65, 335

Wis. 2d 681, 799 N.W.2d 831.

      ¶26    Our    decision     in    Weed         strikes     a     balance        between
ensuring     that   a   defendant      makes    a        knowing,    intelligent,          and


                                          9
                                                                   No.     2012AP2140-CR



voluntary       decision        about    whether     to    testify       and   avoiding

inappropriately influencing that decision.                      Our later decision

in   Denson     illustrates       that    improperly       influencing     a   decision

that       belongs   to   the    defendant       remains    a   source    of   concern.

Therefore, we note that by going beyond the limited colloquy in

Weed, for instance by inquiring into the "advisability and the

risk of taking the stand," a circuit court risks going too far.

Arthur v. United States, 986 A.2d 398, 407 (D.C. 2009).

       ¶27     We do not decide, however, whether the circuit court

erred in this case.             The State does not dispute that the circuit

court erred.7        Therefore, we assume, without deciding, that error

occurred, and analyze only whether that assumed error should

result in a new trial.

                                  D.    Harmless Error

       ¶28     Denial of a defendant's constitutional rights does not

necessarily entitle him or her to a new trial.                             Chapman v.

California, 386 U.S. 18, 22 (1967); State v. Kuntz, 160 Wis. 2d

722, 735-38, 467 N.W.2d 531 (1991).                 Rather, "an otherwise valid
conviction should not be set aside if the reviewing court may

confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt."                       Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986).                    This is the doctrine of

harmless error.



       7
       This court is not bound by a party's concessions of law.
State v. St. Martin, 2011 WI 44, ¶14 n.6, 334 Wis. 2d 290, 800
N.W.2d 858.

                                            10
                                                                No.     2012AP2140-CR



    ¶29     Wisconsin's harmless error rule appears in Wis. Stat.

§ 805.18.    It is made applicable to criminal proceedings by Wis.

Stat. § 972.11(1), and prohibits reversal in those cases for

errors that do not affect the substantial rights of a defendant.

State v. Armstrong, 223 Wis. 2d 331, 368 & n.36, 588 N.W.2d 606

(1999).     As with its federal counterpart,8 the Wisconsin rule

accords a "strong presumption" that an error is subject to a

harmless-error review.          See State v. Hansbrough, 2011 WI App 79,

¶11, 334 Wis. 2d 237, 799 N.W.2d 887 (quoting Neder v. United

States,   527     U.S.    1,    8   (1999))    (further      citation      omitted).

Accordingly, "most constitutional errors can be harmless," and

only a "very limited class of cases" require automatic reversal.

Fulminante, 499 U.S. at 306; Johnson v. United States, 520 U.S.

461, 468 (1997).

    ¶30     For the purposes of determining when to apply harmless

error review, the United States Supreme Court has set forth a

dichotomy   of    error     types.     Fulminante,       499   U.S.     at   307-10.

First,    there     are        trial   errors,       which     "occur[]       during
presentation of the case to the jury and their effect may be

quantitatively           assessed      in      the       context      of      other

evidence presented        in   order   to    determine    whether     [they   were]

harmless beyond a reasonable doubt."             United States v. Gonzalez-

Lopez, 548 U.S. 140, 148 (2006) (quoting Fulminante, 499 U.S. at

    8
       Wisconsin's harmless error rule is nearly "identical to
the federal rule," which provides that "[a]ny error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded." State v. Harvey, 2002 WI 93, ¶39,
254 Wis. 2d 442, 647 N.W.2d 189; Fed. R. Crim. P. 52(a).

                                        11
                                                                        No.     2012AP2140-CR



307-08) (internal quotation marks omitted).                          The second type of

error is structural.                  These "defy analysis by harmless-error

standards because they affec[t] the framework within which the

trial proceeds, and are not simply . . . error[s] in the trial

process itself."             Id. (quoting Fulminante, 499 U.S. at 309-10)

(internal quotation marks omitted).                       This latter type of error

is "so intrinsically harmful as to require automatic reversal."

Neder, 527 U.S. at 7.

       ¶31   We       have    embraced        this      framework     in      our    previous

decisions.        Travis, 347 Wis. 2d 142, ¶54; State v. Harvey, 2002

WI 93, ¶¶36-39, 254 Wis. 2d 442, 647 N.W.2d 189.                                In keeping

with our tradition of interpreting Wisconsin's harmless error

rule in a similar manner to its federal counterpart, we apply

that test again today, and conclude that denial of the right to

testify is subject to harmless error review.

       ¶32   An error denying the defendant of the right to testify

on his or her own behalf bears the hallmark of a trial error.

That is, its affect on the jury's verdict can be "quantitatively
assessed in the context of other evidence presented in order to

determine whether its admission was harmless beyond a reasonable

doubt."      Fulminante, 499 U.S. at 308.

       ¶33   We recognize that a defendant's testimony may be, on

the whole, of particular importance to the issues in the case.

See    Rivera,     741       S.E.2d    at    704       ("it   is   difficult        to   fathom

anything more logically connected to the fundamental issue" in a

case    "than     a    defendant's          own    testimony       about the        [crime]").
However, this does not make its absence incapable of assessment.
                                                  12
                                                               No.     2012AP2140-CR



We agree with the following position of the Tennessee Supreme

Court:

      In some cases, the defendant's testimony would have no
      impact, or even a negative impact, on the result of
      trial.     Likewise, in some cases, denial of a
      defendant's right to testify may be devastating to the
      defense.     However, under such circumstances, a
      reviewing court will simply conclude that the error
      was not harmless beyond a reasonable doubt. The fact
      that reversal may be required in some cases is no
      reason to eschew the harmless error doctrine entirely
      when the error involved is clearly of a trial, rather
      than a structural nature.
Momon    v.   State,   18    S.W.3d    152,     166   (Tenn.   1999)     (internal

citations      and   internal    quotation       marks      omitted).       Stated

otherwise, denying a defendant the right to testify is not the

type of error, "the effect[] of which [is] inherently elusive,

intangible, and [therefore] not susceptible to harmless error

review."      Palmer v. Hendricks, 592 F.3d 386, 399 (3d Cir. 2010).

Accordingly, harmless error review applies.

      ¶34     We also observe that, as with              other errors in         the

"trial error" category, the denial of a defendant's right to
testify occurs at a discrete point in the trial.                     By contrast,

errors that are structural permeate the entire process.                        These

include a complete denial of counsel, Gideon v. Wainwright, 372

U.S. 335, 344 (1963); a denial of counsel of defendant's choice,

Gonzalez-Lopez, 548 U.S. at 150; a biased judge, Tumey v. Ohio,

273   U.S.    510,   534    (1927);    racial    discrimination      during     jury

selection, Vasquez v. Hillery, 474 U.S. 254, 263 (1986); and

denial   of    self-representation,       McKaskle     v.    Wiggins,    465    U.S.
168, 177-78 n.8 (1984).               Neder, 527 U.S. at 8.          A defective

                                        13
                                                        No.    2012AP2140-CR



reasonable    doubt   instruction    is   also   structural   because    it

"vitiates all the jury's findings" by "erecting a presumption

regarding an element of the offense."            Sullivan v. Louisiana,

508 U.S. 275, 280-81 (1993).

    ¶35   Our    conclusion   is    consistent   with   the   majority   of

other jurisdictions that on direct appeal have applied harmless

error review to a circuit court's denial of a defendant's right

to testify.     Quarels, 142 S.W.3d at 82; Momon, 18 S.W.3d at 166;

People v. Solomon, 560 N.W.2d 651, 655 (Mich. Ct. App. 1996).9

Federal courts that have considered the issue in the context of

habeas petitions have reached a similar result.           Gill v. Ayers,

342 F.3d 911, 921-22 (9th Cir. 2003); Ortega, 843 F.2d at 262;

Wright v. Estelle, 549 F.2d 971, 972, 974 (5th Cir. 1977).              And,

in the context of ineffective assistance of counsel claims, we

note that a defendant does not automatically receive a new trial

when deprived of the right to testify; rather, a defendant must

proceed under the framework of Strickland v. Washington, 466

U.S. 668 (1984).      State v. Flynn, 190 Wis. 2d 31, 56, 527 N.W.2d
343 (Ct. App. 1994).      That a defendant must show that the denial

of his or her right to testify was prejudicial, then, is not a

new concept.

    9
       We note that in Arthur v. United States, 986 A.2d 398
(D.C. 2009), which held that the denial of a defendant's right
to testify is not amendable to harmless error, the court seemed
capable of assessing the effect of such an error in the context
of other evidence.     Id. at 416 (there was "a reasonable
probability that but for the violation of appellant's right to
testify, the jury would have had a reasonable doubt of his
guilt").

                                    14
                                                                      No.     2012AP2140-CR



     ¶36   Nelson       attempts       to    avoid        the       result     Fulminante

dictates by employing a somewhat different test.                             She contends

that the harmless error rule should not apply because the right

to testify "is a right that when exercised usually increases the

likelihood of a trial outcome unfavorable to the defendant, [and

therefore]      its   denial   is      not       amenable      to    'harmless       error'

analysis."      McKaskle, 465 U.S. at 177 n.8.                  Drawing on McKaskle,

which held that the right to self-representation is not subject

to harmless error review, she argues as follows:

          Like self-representation, the right to testify
     cannot be harmless because it is a right to make a
     personal decision that is founded on the respect for
     free choice and the human dignity of the individual
     citizen.    (Citation omitted.)   The denial of that
     right is structural, not because it is born from the
     belief that by doing so the defendant will have a
     better chance of acquittal, but because it is born
     from "the axiomatic notion that each person is
     ultimately responsible for choosing his own fate
     . . ."   Chapman v. United States, 553 F.2d 886, 891
     (5th Cir. 1977).
     ¶37   We     agree    with     Nelson         that     certain         rights    serve

purposes other than to determine the guilt or innocence of a
defendant.      For instance, Nelson correctly notes that the right

of   self-representation          is    grounded          in     "respect       for     the

individual,"      and   that   it      "exists       to     affirm      the     accused's

individual dignity and autonomy."                   Faretta v. California, 422

U.S. 806, 834 (1975) (quoting Illinois v. Allen, 397 U.S. 337,

350-51 (1970) (Brennan, J., concurring)); State v. Klessig, 211

Wis. 2d 194, 215-16, 564 N.W.2d 716 (1997) (quoting McKaskle,
465 U.S. at 178 (Abrahamson, C.J., concurring)).


                                            15
                                                         No.     2012AP2140-CR



     ¶38    Principles   of   self-determination   also        underlie   the

requirement that a defendant make certain decisions, such as

whether to accept a plea, whether to try the case to a jury, and

whether he or she will be present at trial.10       Richard J. Bonnie,

The Competence of Criminal Defendants:         Beyond Dusky and Drope,

47 U. Miami L. Rev. 539, 553 (1993).

     ¶39    Additionally,     autonomy   has    proven     an      important

consideration in certain areas of constitutional jurisprudence,

including reproductive rights,11 search and seizure,12 and self-

incrimination.13      Michael Heise, Equal Educational Opportunity

and Constitutional Theory:       Preliminary Thoughts on the Role of

School Choice and the Autonomy Principle, 14 J.L. & Pol. 411,

452 (1998).    We cannot conclude, however, that any of this means

     10
          See Jones v. Barnes, 463 U.S. 745, 751 (1983).
     11
       Carey v. Population Servs. Int'l, 431 U.S. 678, 687
(1977) (discussing the "constitutional protection of individual
autonomy in matters of childbearing"); Griswold v. Connecticut,
381 U.S. 479, 485 (1965) (referencing "penumbral rights of
'privacy and repose'"); Roe v. Wade, 410 U.S. 113, 152 (1973)
("right of personal privacy, or a guarantee of certain areas or
zones of privacy, does exist under the Constitution").
     12
       Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Union Pac.
R. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held
more sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and control
of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law.").
     13
       Miranda v. Arizona, 384 U.S. 436, 460 (1966) ("the
constitutional foundation underlying the privilege [against
self-incrimination] is the respect a government——state or
federal——must accord to the dignity and integrity of its
citizens . . . to respect the inviolability of the human
personality").

                                   16
                                                                         No.    2012AP2140-CR



that Nelson is automatically entitled to a new trial, for the

reasons we now explain.

       ¶40     First, while autonomy is an important constitutional

value, the test of Fulminante makes no mention of the purpose of

the    right    or     the   interests       it     serves.       Rather,       it    defines

structural error by only two characteristics, the timing of the

error and its capacity for assessment.                      See Gonzalez-Lopez, 548

U.S. at 149 n.4 ("it is hard to read [Fulminante] as doing

anything       other    than      dividing        constitutional        error     into       two

comprehensive categories").

       ¶41     Second, although            McKaskle, which was decided                    before

Fulminante,       relied       on    the    "irrelevance        of      harmlessness"         in

concluding that a defendant's right to self-representation is

structural, McKaskle is distinguishable.                          Unlike denial of a

defendant's      right       to     testify,      denial   of     the    right       to    self-

representation permeates the entire trial.                         Therefore, McKaskle

comes squarely within Fulminante's description of a structural

error.       As such, we see no reason to depart from the Fulminante
framework.

       ¶42     Finally,      accepting       Nelson's      test      would     divorce       the

doctrine of harmless error from its purpose.                              Harmless error

developed       from     the      criticism         that   "[r]eversal         for        error,

regardless of its effect on the judgment, encourages litigants

to abuse the judicial process and bestirs the public to ridicule

it."     Neder, 527 U.S. at 18 (quoting R. Traynor, The Riddle of

Harmless Error 50 (1970)).                 Its application does not "reflect[]
a denigration of the constitutional rights involved."                                 Rose v.
                                               17
                                                                           No.    2012AP2140-CR



Clark,    478    U.S.       570,     577    (1986).         Rather,      it      "strikes      the

appropriate balance between the judicial system's interest in

obtaining reliable results and the system's competing interest

in having litigation end at some point."                           Momon, 18 S.W.3d at

167.      In    other       words,    it    furthers        "the    principle          that    the

central purpose of a criminal trial is to decide the factual

question of the defendant's guilt or innocence."                                  Id. at 165

(quoting Van Arsdall, 475 U.S. at 681).                       As such, it makes sense

to define the structural/trial error dichotomy by an error's

capacity for assessment, rather than the nature or importance of

the right the error affected.

       ¶43     For these reasons, we conclude that the denial of a

defendant's         right    to    testify      is    subject       to     harmless       error

review.        We now apply that rule to the alleged error in the

present case.

                                     E.     Application

       ¶44     In order for an error to be harmless, the State, as

the party benefitting from the error, must prove that it is
"clear beyond a reasonable doubt that a rational jury would have

found    the    defendant         guilty     absent    the     error."            Harvey,      254

Wis. 2d      442,     ¶46   (quoting        Neder,    527    U.S.     at      18);     State    v.

LaCount,       2008    WI    59,     ¶85,    310     Wis. 2d       85,     750    N.W.2d       780

(further       citations      omitted).            Stated    otherwise,           we   must    be

satisfied "not that the jury could have convicted the defendant

(i.e., sufficient evidence existed to convict the defendant),

but rather that the jury would have arrived at the same verdict


                                              18
                                                                    No.        2012AP2140-CR



had the error not occurred."             State v. Martin, 2012 WI 96, ¶45,

343 Wis. 2d 278, 816 N.W.2d 270 (internal citation omitted).

       ¶45   In   Martin, we recently articulated                  a     non-exhaustive

list of factors that aid in evaluating whether the State has met

its    burden.          Id.,     ¶46.         These     included         the     following

considerations:

       the frequency of the error; the importance of the
       erroneously admitted evidence; the presence or absence
       of   evidence   corroborating  or   contradicting  the
       erroneously admitted evidence; whether the erroneously
       admitted evidence duplicates untainted evidence; the
       nature of the defense; the nature of the State's case;
       and the overall strength of the State's case.
Id.    Because that case involved an erroneous decision to admit

evidence, and in the present case we assume error because of a

decision     to   exclude       evidence,     Martin's     terminology           does   not

correspond perfectly to this case.                    Those factors do, however,

provide useful ways to look at the effect of an error on the

trial as a whole.

       ¶46   As   was     the   court    in    Momon,    we   are      persuaded        that

"[d]enial    of    a    defendant's right        to    testify      is    analogous      to

denial of a defendant's right to effective cross-examination."

Momon, 18 S.W.3d at 167.             "In both instances, the defendant is

being deprived of the right to present evidence to the jury."

Id.     Accordingly, we conclude that the following formulation

from   Momon,     which    is    based   on    the    language      of    Van     Arsdall,

correlates well to our pronouncement in Martin:

       [C]ourts should consider the following factors when
       determining whether the denial of the right to testify
       is harmless beyond a reasonable doubt:        (1) the

                                          19
                                                                    No.    2012AP2140-CR


    importance of the defendant's testimony to the defense
    case; (2) the cumulative nature of the testimony; (3)
    the presence or absence of evidence corroborating or
    contradicting the defendant on material points; (4)
    the overall strength of the prosecution's case.
Id. at 168; see Van Arsdall, 475 U.S. at 684; State v. Norman,

2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d 97.                          We now apply

those factors to the alleged error in the present case.

    ¶47        There is no denying that testifying at her own trial

was important to Nelson.               She wanted to recount the events from

her own perspective, and thought that telling her side of the
story    would    make    her    "feel    better."       These      are    not    trivial

concerns.        Having       one's     voice   heard    is    a    key    element     of

"procedural justice," which is grounded in the concept that if

people perceive legal process as fair, they are more willing to

accept legal rules and outcomes with which they do not agree.

Tom R. Tyler & E. Allen Lind, Handbook of Justice Research in

Law, 65 (Joseph Sanders & V. Lee Hamilton eds., 2001).                           However,

we cannot say that it was important for the purpose of harmless

error    review,      which     is    concerned   with    the      accuracy       of   the

verdict.       Therefore, to the extent that Nelson would have taken

the stand and admitted that she engaged in the conduct she was

accused of, we conclude that the exclusion of that testimony was

harmless.

    ¶48        Nelson also wished to offer a different account of the

timing    of    the   events     and    testify   that   she       did    not    unbuckle

D.M.'s pants.         She did not intend to deny, however, that she had

sexual intercourse with D.M. on three separate occasions and
that she knew he was under the age of 16.                 Considering the trial

                                           20
                                                           No.     2012AP2140-CR



as a whole, we conclude that the exclusion of this testimony was

likewise harmless.

     ¶49   The sole theory of Nelson's defense was to put the

State to its burden of proving her guilty beyond a reasonable

doubt.14   Interjecting an alternative version of events may have

made it more difficult for a jury to find Nelson guilty beyond a

reasonable doubt.      For instance, it could have cast doubt on

D.M.'s ability to accurately recall the assaults.                This does not

mean, however, that the result would have changed had Nelson

testified on her own behalf.

     ¶50   This   is   so   because   the   jury   could    have     convicted

Nelson even if its members did not agree on the timing of the

events or who unbuckled D.M.'s pants.          See State v. Badzinski,

2014 WI 6, ¶28, 352 Wis. 2d 329, 843 N.W.2d 29 (quoting State v.

Holland, 91 Wis. 2d 134, 143, 280 N.W.2d 288 (1979)) ("Unanimity


     14
       Nelson's post-conviction counsel argued that testimony
disputing that Nelson unbuckled D.M.'s pants and the timing of
the events could have helped her defense because "if she had
said that it only happened one time, that's it, and he forced
himself on me, then she would, if the jury accepted such
testimony, she clearly would be found not guilty of two of the
three counts, perhaps found not guilty of the remaining count."
It is certainly true that "where we have an assertion that it
was the defendant who did not consent to the intercourse, that
it was she who was raped by the child, then the issue of her
consent becomes paramount."   State v. Lackershire, 2007 WI 74,
¶29, 301 Wis. 2d 418, 734 N.W.2d 23.      The problem with this
argument is that Nelson has never claimed that D.M. raped her.
By considering it, we would be assessing the error not in the
context of the case as a whole, but in the abstract.
Additionally, because she does not make this argument on review,
we need not consider it. Gister v. Am. Family Mut. Ins. Co.,
2012 WI 86, ¶37 n.19, 342 Wis. 2d 496, 818 N.W.2d 880.

                                      21
                                                             No.   2012AP2140-CR



is   required   only   with    respect     to   the   ultimate   issue   of   the

defendant's guilt or innocence of the crime charged, [it] is not

required with respect to the alternative means or ways in which

the crime can be committed.") (alteration in Badzinski).                      The

only facts the jury needed to find were that Nelson had sexual

intercourse with a person who had not attained the age of 16 on

three occasions.       Even if the jury believed Nelson's version of

the events, or could not decide whether to believe Nelson or

D.M., Nelson's testimony still would have made it more likely

that those facts were true.15            In that sense, her testimony was

cumulative of the evidence the State presented, and bolstered

its case against her.         Because her testimony would have differed

from the State's evidence only on immaterial points, it would

not have aided in her defense.

      ¶51   Finally,    we    note   the    overwhelming    strength     of   the

prosecution's case.      The State presented the testimony from the

victim's mother and two law enforcement officers, all of whom

said that Nelson admitted engaging in conduct that was contrary
to the laws she was charged with violating.                The victim himself

corroborated this testimony.          There was not a shred of evidence

controverting    the    State's      assertion    that    Nelson   had   sexual

intercourse with D.M., who was under the age of 16 at the time.

Therefore, we have no trouble concluding that the jury would


      15
       See generally Bruton v. United States, 391 U.S. 123, 139-
140 (1968) (White, J., dissenting) ("the defendant's own
confession is probably the most probative and damaging evidence
that can be admitted against him").

                                       22
                                                                   No.   2012AP2140-CR



have convicted Nelson even if she took the stand, and that any

error in preventing her from testifying was harmless.

                               III.   CONCLUSION

    ¶52     We conclude that harmless error review applies to the

circuit   court's    alleged      denial      of    Nelson's    right    to   testify

because its effect on the outcome of the trial is capable of

assessment.     See Fulminante, 499 U.S. at 307-08.                      We further

conclude that,      given   the nature of Nelson's defense and                     the

overwhelming    evidence     of    her     guilt,      the     alleged   error     was

harmless beyond a reasonable doubt.                 Accordingly, we affirm the

decision of the court of appeals.

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

affirmed.




                                         23
                                                                             No.   2012AP2140-CR.akz


       ¶53          ANNETTE KINGSLAND ZIEGLER, J.                      (concurring).           I join

the majority opinion which affirms the decision of the court of

appeals.             I write separately and concur, however, because I

would not assume that the circuit court erred. On this record,

it    is       less    than      clear    that       the       circuit       court      should     have

concluded that Nelson knowingly, intelligently, and voluntarily

decided to testify.                 See State v. Weed, 2003 WI 85, ¶40, 263

Wis. 2d 434,           666     N.W.2d 485.               Nelson's       right      to    testify     is

unquestionably an important right.                              See Rock v. Arkansas, 483

U.S. 44, 53 n.10 (1987).                       Typically, a circuit court would be

incorrect to deny a defendant that important right.                                            On the

record         in    the   case    at     issue,         however,       given      the    nature    of

Nelson's defense, the fact that Nelson's testimony would only

serve      to       incriminate        her,    and       could,    at    best,       lead     to   jury

nullification,             and    considering            Nelson    and       her   counsel's        own

words, the circuit court was not necessarily incorrect.                                              In

fact, had Nelson taken the stand it would have been well within

the    circuit         court's         discretion         to    have     precluded          the    only
testimony that Nelson wished to offer.                              See State v. Bjerkaas,

163 Wis. 2d 949, 960, 472 N.W.2d 615 (Ct. App. 1991) (holding

that       a    defendant        has     no    right       to    urge    a    jury       to   nullify

applicable            laws).       The        circuit      court       was    hard       pressed     to

conclude            that   Nelson        indeed          knowingly,       intelligently,            and

voluntarily reached the conclusion that she wished to testify.

       ¶54          A defendant's right to testify is not synonymous with

a defendant's right to say anything he or she would like.                                          Had
Nelson been allowed to testify she would have been relegated to

                                                     1
                                                              No.   2012AP2140-CR.akz


incriminating        herself,       thus     undercutting     her     defense——that

being, that the State has not met its burden of proof.                     Majority

op., ¶49.     The record reflects that the circuit court was not

convinced     that      Nelson      was     making   her    decision    knowingly,

intelligently, and voluntarily.

    ¶55     Simply stated, it is not completely clear that Nelson

did in fact knowingly, intelligently, and voluntarily make a

decision    to       testify     and       incriminate      herself     given    the

circumstances.         Confronted with a less than satisfying exchange

regarding Nelson's decision about testifying, the court stated:

    As Ms. Larson observed, she's never seen or heard of
    this in 21 years of being a prosecutor.     I've never
    run across this kind of a situation either.

         I've tried to do some quick legal research.   I
    can't find anything about what a judicial officer is
    to do under these types of circumstances.

         But I do know this, that in order for me to
    permit   the   defendant,  any  defendant,  including
    Ms. Nelson, to testify, I have to make a finding that
    she's waiving her right against self-incrimination
    freely, voluntarily and intelligently and knowingly
    and that she understands her right to either testify
    or not testify.
The court further acknowledged:

         And it seems to me that based upon this limited
    colloquy that I've had with Ms. Nelson, I, and when I
    say limited, I think I've thoroughly explored the ins
    and outs of what she wants to testify to, but I can't
    find that Ms. Nelson is intelligently and knowingly
    waiving her right against self-incrimination because
    she wants to testify to things that are completely
    irrelevant to the two things that the state has to
    prove.
Considering      the   duty    to    make    certain   findings     regarding    her
decision to testify, the court stated:
                                            2
                                                           No.   2012AP2140-CR.akz

          I'm also finding that she's -- that she's not
    intelligently and knowingly waiving her right against
    self-incrimination, because based upon the colloquy
    that I've had here with Ms. Bahnson, Angelica Nelson
    is doing this against the advice of her lawyer, at
    least with her lawyer telling her that it's not a good
    idea.
The court understood that "there are some instances in which a

defendant could be inadvisably taking the witness stand.                  But it

would be on elements, issues that are central to the case, that

is, elements the state has to prove."                  Specific to this case,

the court found:

    Nelson wants to talk about all sorts of things that
    don't matter.    And if she took the witness stand,
    under the circumstances, Ms. Larson could extract from
    Ms. Nelson the admissions that this occurred.     So I
    just don't think I can make that finding. So I'm not
    going to let her testify.

Ultimately, the court concluded:

    I'm reaffirming my decision and belief that Ms. Nelson
    is   not   freely  --   she's   not   voluntarily  and
    intelligently and knowingly waiving her right against
    self-incrimination, so I'm not going to permit her to
    testify.
    ¶56   The record reflects that the circuit court did not

necessarily err in determining that Nelson was not knowingly,

intelligently,   and   voluntarily       making    a    decision   to   testify.

See Weed, 263 Wis. 2d 434, ¶¶44-46.               As such, it is far from

certain that the circuit court erred when it precluded Nelson

from offering irrelevant, excludable testimony.

    ¶57   At most, Nelson's testimony would have invited jury

nullification.     She "'want[ed] to tell what actually happened,'"

that is, Nelson would testify that she did have intercourse with
D.M., but she wanted to add that "she did not unbuckle D.M.'s

                                     3
                                                            No.    2012AP2140-CR.akz


pants and that the assaults did not happen three days in a row."

Majority op., ¶15.        However, whether she unbuckled his pants or

he   unbuckled    his   own   pants   is   of   no   help    to    Nelson,   since

consent was not an issue in this case.               Similarly, whether the

assaults occurred "three days in a row" is of no assistance to

Nelson, since the State did not have to prove the exact date or

time of the assaults in order to secure a conviction.                     Majority

op., ¶50 (citing State v. Badzinski, 2014 WI 6, ¶28, 352 Wis. 2d

329, 843 N.W.2d 29); see also Wis. Stat. § 948.02; State v.

Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App. 1988).

Nelson acknowledged that if she were to testify, she would have

indeed admitted the sexual assaults charged.                      Id.    Her only

defense was to argue that the State failed to meet its burden of

proof. Her testimony would have completely unraveled her only

defense.     Additionally, the circuit court would have been within

its discretion to preclude the only testimony that Nelson wanted

to offer, see Bjerkaas, 163 Wis. 2d at 960, and Nelson would

have been left with only inculpatory testimony.                   On this record,
the circuit court was hard pressed to conclude that Nelson was

knowingly, intelligently, and voluntarily making the decision to

testify.

      ¶58    The circuit court judge was between a rock and a hard

place.      If Nelson was allowed to testify, the court could be

criticized       for    not    insuring     that      she     was       knowingly,

intelligently, and voluntarily deciding to testify, see Weed,

263 Wis. 2d 434, ¶40, and Nelson's counsel could be challenged
as ineffective.        See State v. Arredondo, 2004 WI App 7, ¶¶27-29,

                                       4
                                                                No.    2012AP2140-CR.akz


269 Wis. 2d 369, 674 N.W.2d 647.                If Nelson was not allowed to

testify, the court could be viewed as depriving Nelson of her

fundamental       right   to   testify.        See   Harris     v.    New       York,    401

U.S. 222, 225 (1971).           In this case, there was no easy answer.

I am duly concerned that on this record, had Nelson been allowed

to testify we would be left to second-guess the circuit court's

decision     in    that   regard     and       likely    reviewing         a     claim   of

ineffective       assistance    of   counsel.           Here,   the    circuit       court

seems to have done the best it could given the circumstances,

and did not err in protecting Nelson from her own incriminating

testimony.

      ¶59   As a result, while I conclude that it is indeed a rare

circumstance       that   the    circuit       court     should       be       allowed   to

preclude a defendant from testifying, the facts here indicate

that the circuit court did not err in so concluding that Nelson

was   not   knowingly,     intelligently,         and    voluntarily           making    her

decision to testify.

      ¶60   For the foregoing reasons, I concur.




                                           5
                                                               No.    2012AP2140-CR.ssa


     ¶61    SHIRLEY      S.    ABRAHAMSON,       C.J.     (dissenting).             The

record is clear in the instant case that the defendant wanted to

testify.      Although    the    right    to    testify    is    personal     to    the

defendant     and    belongs     exclusively        to    the        defendant,     the

defendant both personally and through counsel (who advised the

defendant against testifying) unequivocally asserted that she

wanted to testify.

     ¶62    By prohibiting the defendant from getting on the stand

and testifying on her own behalf, the circuit court denied the

defendant the right to decide whether to testify, a decision

that was hers alone to make.         Jones v. Barnes, 463 U.S. 745, 751

(1983).

     ¶63    The majority opinion assumes that the circuit court

erred when it refused to allow the defendant to tell her side of

the story.1    The concurrence concludes that the circuit court did

not err in precluding the defendant from testifying.2

     ¶64    I would hold that the circuit court erred.

     ¶65    The     majority    opinion       asserts    the    assumed     error   is
subject to harmless-error analysis.3              Many courts have held that

the denial of a criminal defendant's right to testify is subject

to harmless-error analysis.4             Other courts, however, refuse to




     1
         Majority op., ¶27.
     2
         Concurrence, ¶55-56.
     3
         Majority op., ¶5.
     4
         Majority op., ¶35.

                                          1
                                                                No.   2012AP2140-CR.ssa


follow this principle and instead hold that the denial of the

right to testify is not subject to harmless-error analysis.5

     ¶66     Whether an error is subject to harmless-error analysis

is a question of law this court decides independently of the

circuit    court       or    court    of    appeals,    benefiting          from   their

analyses.6

     ¶67     I    would      hold    that   the   error    is     not       subject    to

harmless-error analysis.

     ¶68     A defendant has a fundamental right to testify.                          The

United States Supreme Court has declared that the United States

Constitution          guarantees     criminal     defendants          the    right     to

testify, locating the right in the Fifth, Sixth, and Fourteenth

Amendments       of    the   Constitution.7       The     right       to    testify    is


     5
       See, e.g., State v. Rivera, 741 S.E.2d 694, 706 (S.C.
2013) ("[A] trial court's improper refusal to permit a defendant
to testify . . . is not amenable to harmless-error analysis.");
State v. Dauzart, 769 So. 2d 1206, 1210 (La. 2000) ("[D]enial of
the accused's right to testify is not amenable to harmless-error
analysis."); State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979)
("[T]he right to testify is such a basic and personal right that
its infraction should not be treated as harmless error.").
     6
       State v. Travis, 2013 WI 38, ¶9 & n.9, 347 Wis. 2d 142,
832 N.W.2d 491.
     7
       "The opportunity to testify is . . . a necessary corollary
to the Fifth Amendment's guarantee against compelled testimony."
Rock v. Arkansas, 483 U.S. 44, 52 (1987). The Sixth Amendment's
Compulsory Process Clause guarantees a criminal defendant "the
right to call witnesses in his [or her] favor."     Id. (internal
quotation marks omitted).      The Fourteenth Amendment assures
defendants the "right to be heard and to offer testimony" as a
part of due process. Id. at 51.

     See also State            v.    Albright,    96    Wis. 2d 122,          128,    291
N.W.2d 487 (1980).

                                            2
                                                                     No.    2012AP2140-CR.ssa


embedded in the Sixth Amendment right to present a defense and

to self-representation.8               The right to testify is one of the

rights that "are essential to due process of law in a fair

adversary process."9

      ¶69        The   Wisconsin      Constitution         explicitly           states       that

criminal defendants "shall enjoy the right to be heard."10

      ¶70        The question before the court in the instant case is

whether         a    defendant's      fundamental         constitutional             right    to

testify is so fundamental to a fair trial that its infraction

cannot      be      treated   as    harmless      error.         A   limited         class     of

fundamental constitutional errors exists that defies harmless-

error      analysis.          The    labels       "structural        error"       and    "non-

structural error" have been assigned to constitutional errors.

If the error is labeled "structural," then the harmless error

analysis is not applied; reversal is automatic.                                 These errors

are       "so       intrinsically      harmful       as     to       require         automatic

reversal . . . without              regard   to    their    effect         on   [a    trial's]

outcome."11          If the error is labeled "non-structural," then the
harmless-error analysis is applied.




      8
           Rock, 483 U.S. at 51.
      9
           Id.
      10
       Wis. Const. art. I, § 7.  See State v. Denson, 2011 WI
70, ¶¶49-56, 335 Wis. 2d 681, 799 N.W.2d 831 (noting the
protections   provided by  both  the  Wisconsin  and  federal
constitutions for the right to testify and its corollary, the
right not to testify).
      11
           See Neder v. United States, 527 U.S. 1, 7 (1999).

                                              3
                                                           No.   2012AP2140-CR.ssa


      ¶71    Most constitutional errors are labeled non-structural.

The United States Supreme Court has, however, enumerated several

fundamental rights the denial of which is prejudicial per se and

not subject to harmless-error analysis, including the right of

self-representation,12 the right to counsel,13 and the right to an

impartial judge.14      The United States Supreme Court has not ruled

on   whether      harmless-error    analysis     applies    to    denial   of   a

defendant's right to testify.15

      ¶72    I conclude that the defendant's right to testify falls

within     this   category   of    fundamental    rights     not    subject     to

harmless-error analysis.           I reach this conclusion for several

reasons.



      12
           McKaskle v. Wiggins, 465 U.S. 168, 177-78 & n.8 (1984).
      13
           Gideon v. Wainwright, 372 U.S. 335, 343 (1963).
      14
           Tumey v. Ohio, 273 U.S. 510, 535 (1927).
      15
       Although one Wisconsin court of appeals case asserts that
the United States Supreme Court has determined that harmless-
error analysis applies to the deprivation of the right to
testify, see State v. Flynn, 190 Wis. 2d 31, 56, 527 N.W.2d 343
(Ct. App. 1994), the Flynn case cited Crane v. Kentucky, 476
U.S. 683 (1986), for this proposition.     Crane did not assert
that harmless-error analysis applied.    Rather, in Crane, the
parties agreed that harmless-error analysis applied and the
Court did not reach the issue.     Also, the case involved the
prosecutor's foreclosing the defendant's efforts to admit
testimony on the environment in which police secured his
confession, rather than foreclosing the defendant's testimony in
its entirety.

     In addition, the Flynn case itself can be distinguished
because Flynn concerned an ineffective assistance of counsel
claim, which has a different standard for determining prejudice
than a harmless-error analysis.

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                                                                No.    2012AP2140-CR.ssa


      ¶73    First,      the    right   to    testify     is   meaningless     if     the

defendant is not allowed to actually testify.                       Taking the stand

is a defendant's opportunity to face his or her accusers, to

tell his or her story, and to attempt to persuade those who will

make a decision that will have a profound effect on his or her

life and liberty.             A defendant's opportunity to conduct his or

her   own    defense     by     calling      witnesses    is    incomplete     if     the

defendant may not present himself or herself as a witness.16

      ¶74    "[T]he most important witness for the defense in many

criminal cases is the defendant."17                 "[T]he right to speak for

oneself entails more than the opportunity to add one's voice to

a   cacophony     of   others."18       Barring     a    criminal     defendant     from

testifying is not comparable to excluding a witness's testimony

or particular evidence to which harmless-error analysis applies.

The   defendant     is    a    very   special     witness.          "[T]here   [i]s    no

rational justification for prohibiting the sworn testimony of

the accused, who above all others may be in a position to meet

the prosecution's case."19
      ¶75    Second,      the    right       to   testify      is    intertwined      and

connected with the right of self-representation.                       Denial of the

right of self-representation is not subject to harmless-error

analysis.        In Faretta v. California, 422 U.S. 806 (1975), the

      16
           Rock, 483 U.S. at 52.
      17
           Id.
      18
           McKaskle, 465 U.S. at 177.
      19
       Ferguson v. Georgia, 365 U.S. 570, 582 (1961) (emphasis
added). See also Rock, 483 U.S. at 50 (quoting Ferguson).

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                                                           No.   2012AP2140-CR.ssa


United      States    Supreme    Court    vacated    the   conviction        of    a

defendant who was not permitted to appear pro se.                 The Court did

not analyze whether the defendant would have fared better with

or without appointed counsel.

      ¶76    The right of a defendant to testify, according to Rock

v. Arkansas, 483 U.S. 44, 52 (1987), is "[e]ven more fundamental

to a personal defense than the right of self-representation."

      ¶77    If   a   defendant's      right   to    testify     is   even    more

fundamental than the defendant's right of self-representation

and the right of self-representation is not subject to harmless-

error analysis, it seems to follow that denial of the right to

testify is not subject to harmless-error analysis.

      ¶78    Third, the error in the present case of barring the

defendant from testifying falls within the various formulations

of an error not subject to harmless-error analysis.                     The test

for   determining      whether    a    fundamental    error      is   subject     to

harmless-error analysis is expressed in the case law in the

following variety of ways.            An error is not subject to harmless-
error analysis if:

      •      The error is a "defect affecting the framework within

             which the trial proceeds, rather than simply an error

             in the trial process itself."20

      •      The error "infect[s] the entire trial process,"21 and

             renders the entire trial "fundamentally unfair."22



      20
           Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
      21
           Brecht v. Abrahamson, 507 U.S. 619, 630 (1993).

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                                                                 No.   2012AP2140-CR.ssa


    •      The error deprives a defendant of "basic protections"

           without which "a criminal trial cannot reliably serve

           its function as a vehicle for determination of guilt

           or     innocence,     and     no       criminal    punishment       may    be

           regarded as fundamentally fair."23

    •      The error seriously affects "the fairness, integrity

           or public reputation of judicial proceedings and [is]

           so     fundamental         that       [it    is]   considered       per    se

           prejudicial."24

    •      The error is "so basic to a fair trial" that it "can

           never be treated as harmless error."25

    •      The error undermines a right founded on the respect

           for        free   choice     and       the    human    dignity      of    the

           individual.26



    22
       Neder v. United States, 527 U.S. 1, 8 (1999) (citing Rose
v. Clark, 478 U.S. 570, 577 (1986) (internal quotation marks and
citation omitted); Fulminante, 499 U.S. at 309-310.     See also
State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 742 N.W.2d 61
(citing Neder).
    23
       Rose      v.    Clark,   478    U.S.      570,   577-78    (1986)     (citation
omitted).
    24
       State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 742
N.W.2d 61 (quoting Shirley E., 2006 WI 129, ¶62, 298 Wis. 2d 1,
724 N.W.2d 623).
    25
         Chapman v. California, 386 U.S. 18, 23 (1967).
    26
       The decision "must be honored out of . . . respect for
the individual which is the lifeblood of the law."    Faretta v.
California, 422 U.S. 806, 834 (1975) (quoting Illinois v. Allen,
397 U.S. 337, 350-51 (1970) (Brennan, J., concurring) (internal
quotation marks omitted)).   See also Chapman v. United States,
553 F.2d 886, 891 (5th Cir. 1977).

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                                                              No.       2012AP2140-CR.ssa


      •      The error undermines the concept of each person being

             ultimately    responsible       for     choosing      his     or    her   own

             fate.27

      •      The       error     produces          consequences            that        are

             unquantifiable, indeterminate, and unmeasurable.28

      ¶79    The denial of the right to testify fits within each of

these descriptions of an error to which harmless-error analysis

does not apply.        The error in the present case defies harmless-

error review.      It is too difficult to determine the effect of a

defendant's     taking     or   not    taking      the    stand     on    the    trial's

outcome.

      ¶80    Before    I   conclude,     let    me       address    two     additional

points raised in the majority opinion and concurrence.

      ¶81    First, I agree with the concurrence that the circuit

court was in a difficult position, caught between protecting the

defendant's two rights——the right to testify and the right not

to testify.29

      ¶82    The circuit court obviously thought it ill-advised for
the defendant to testify.             The concurrence agrees.                   That the

defendant may be ill-advised or unwise to testify is not the

legal standard for determining whether the circuit court erred

in   barring    the    defendant      from   testifying.            A    court    cannot

      27
           See Chapman v. United States, 553 F.2d 886, 891 (5th Cir.
1977).
      28
       Neder, 527 U.S. at 11; Sullivan v. Louisiana, 508 U.S.
275, 281-82 (1993).
      29
       A limited colloquy is advised when a defendant elects to
testify. Denson, 335 Wis. 2d 681, ¶63.

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                                                                       No.    2012AP2140-CR.ssa


substitute its judgment for the defendant's.30                                The defendant

must have the right

      as he suffers whatever consequences there may be——to
      the knowledge that it was the claim that he put
      forward that was considered and rejected, and to the
      knowledge that in our free society, devoted to the
      ideal of individual worth, he was not deprived of his
      free will to make his own choice, in his hour of
      trial, to handle his own case.
United     States    v.    Dougherty,         473    F.2d      1113,      1128      (D.C.    Cir.

1972).

      ¶83    Second,      the    relevance          of   the    defendant's           testimony

does not dictate a court's decision to bar the defendant from

taking the stand to testify.                   The majority opinion speculates

that the information the defendant desired to present in her

testimony was irrelevant.31             The circuit court concluded that the

defendant's testimony was irrelevant to the issue of guilt or

innocence.     The concurrence agrees.32

      ¶84    Relevance,         or    lack    thereof,         may   be      the     basis   for

objecting      to    a     defendant's         testimony         and         for     sustaining

objections to the defendant's testimony once the defendant takes
the stand.      The accused's right to testify is not unqualified

and   "'may,    in       appropriate         cases,      bow    to     accommodate          other

legitimate     interests         in    the     criminal        trial      process. . . .'"

Rock, 483 U.S. at 55 (quoted source omitted).                                      But a court

      30
       See Faretta, 422 U.S. at 835-36 (asserting that a court's
assessment of a defendant's legal acumen is irrelevant to its
evaluation of a defendant's decision to self-represent).
      31
           Majority op., ¶50.
      32
           Concurrence, ¶¶55-56.

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                                                                        No.    2012AP2140-CR.ssa


should   not       use    the    relevance      of     a    defendant's          testimony     to

justify barring the defendant from taking the stand at all.                                    We

cannot      know    whether       her    testimony          is    relevant        before      she

testifies.

      ¶85     In    the    instant      case,       the    defendant's          testimony     may

well have been relevant.                As the majority opinion acknowledges,

if the defendant's testimony asserts that "it was the defendant

who did not consent to the intercourse, that it was she who was

raped    by   the       child,    then    the       issue    of    her        consent   becomes

paramount."              Majority       op.,     ¶49       n.14     (quoting        State      v.

Lackershire, 2007 WI 74, ¶29, 301 Wis. 2d 418, 734 N.W.2d 23).

Because the defendant was prohibited from testifying, the jury

was prevented from evaluating her version of the events and

whether her cognitive and intellectual limitations played a role

in her ability to consent.

      ¶86     For the reasons set forth, I conclude that the circuit

court erred in depriving the defendant of the right to testify

under the circumstances of the present case and the error cannot
be   subject       to    harmless-error         analysis.         The    defendant       in   the

instant case is entitled to reversal of the conviction.

      ¶87     For the foregoing reasons, I dissent.

      ¶88     I    am     authorized      to    state       that        Justice    ANN     WALSH

BRADLEY joins this dissent.




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