                                                                   2014 WI 67

                  SUPREME COURT           OF    WISCONSIN
CASE NO.:               2010AP1639-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Erick O. Magett,
                                  Defendant-Appellant-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 344 Wis. 2d 518, 822 N.W.2d 736
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 16, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 11, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Grant
   JUDGE:               George S. Curry

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


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Andrew R. Hinkel, assistant state public defender, and oral
argument by Andrew R. Hinkel.




       For      the    plaintiff-respondent,   the   cause   was   argued   by
Eileen W. Pray, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                             2014 WI 67
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2010AP1639-CR
(L.C. No.    2007CF44)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                          FILED
      v.
                                                                     JUL 16, 2014
Erick O. Magett,
                                                                        Diane M. Fremgen
              Defendant-Appellant-Petitioner.                        Clerk of Supreme Court




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



      ¶1      DAVID      T.     PROSSER,    J.     This      fact-intensive           case
focuses on the second phase of a bifurcated criminal trial in

which the defendant entered a plea of not guilty by reason of

mental disease or defect (NGI).                  The defendant, Erick Magett

(Magett), was found guilty of a felony in the first phase of the

trial.      The jury was expected to determine whether the defendant

met his burden on his NGI plea in the second phase.                                 Under

circumstances that will be explained, the Grant County Circuit

Court,      George    S.      Curry,   Judge,    dismissed      Magett's      NGI     plea
before commencement of the second phase in which the jury was to
                                                                          No.   2010AP1639-CR



determine Magett's "responsibility" for the crime.                                 We review

here an unpublished decision of the court of appeals1 affirming

the defendant's conviction.                  The issues presented may be stated

as follows.

      ¶2       First,        did     the     circuit       court        apply   the        wrong

substantive law by requiring the defendant to produce expert

testimony to carry his burden in the responsibility phase of a

bifurcated criminal trial in which the issue was whether the

defendant was not guilty by reason of mental disease or defect?

      ¶3       Second, did the circuit court err when it ruled that

the defendant was not competent to testify as to his mental

condition in the responsibility phase of a bifurcated criminal

trial     in   which    the        issue   was       whether     the    defendant   was     not

guilty by reason of mental disease or defect?

      ¶4       Third, did the circuit court err in dismissing the

defendant's      NGI     plea       before    the      responsibility       phase     of    the

trial, after the defendant indicated that he would not produce

any     evidence        of     his     mental          disease     or     defect      in    the
responsibility         phase       except:       (1)    his    own     testimony    that     he

"blacked out" for a few seconds when he punched a corrections

officer; and (2) a video of the battery, both of which had been

presented to the jury during the guilt phase of the trial?




      1
       State v. Magett, No. 2010AP1639-CR, unpublished slip op.
(Wis. Ct. App. Sept. 27, 2012).

                                                 2
                                                                    No.    2010AP1639-CR



      ¶5     Fourth,      if   the   circuit       court    made    any    errors   with

respect to the responsibility phase of the defendant's trial,

were the errors harmless?

      ¶6     We reach the following conclusions.

      ¶7     First, as a general rule, a defendant is not required

to present expert testimony to prove the elements of his NGI

defense.     State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240

(1985).     Ordinarily, the defendant will offer expert testimony.

He may also offer testimony by lay witnesses as well as his own

testimony.         As a practical matter, a defendant should offer

evidence to supplement his own testimony because a defendant who

testifies     in    the   responsibility       phase       of   his   trial     without

corroboration is likely to be viewed as self-serving inasmuch as

the purpose of his defense is to escape responsibility for his

already established criminal conduct.                      In only an exceptional

case with extraordinary facts may a defendant carry his burden

in   the   responsibility       phase   of     a    criminal       trial   by    relying

solely on his own testimony.
      ¶8     Second, a defendant is competent to testify as to his

mental     condition      in   the   responsibility         phase     of   a    criminal

trial.      However, a lay defendant does not have an unlimited,

categorical right to give opinion testimony on the issue of

mental disease or defect.

      ¶9     Third, a court should normally permit a defendant to

offer his evidence in the responsibility phase of a trial before

the court rules on his NGI defense.                   By allowing the defendant
an opportunity to offer all his evidence, the court ensures that
                                         3
                                                            No.     2010AP1639-CR



any   dismissal2      or     directed   verdict   is     informed     by     full

consideration    of    the    defendant's    position,    conforms     to    Wis.

Stat. § 805.14(1) and (3) or (4) (2009-10),3 and reduces the

procedural grounds for appeal.              There will not be many cases

where the defendant's position is so bereft of merit that the

court can conclude that there is no jury question as a matter of

law before the defendant presents his evidence.

      ¶10   Fourth, we conclude here that the evidence to support

the defendant's NGI defense was insufficient as a matter of law,

so that any errors by the circuit court in refusing to allow the

trial to proceed to the responsibility phase were harmless.                   We

conclude that no reasonable jury would have determined that the

defendant had a mental disease or defect that caused him to lack

substantial    capacity       to   understand   the    wrongfulness     of    his

conduct or to conform his conduct to the requirements of law.

      ¶11   Accordingly, we affirm the court of appeals' decision

to uphold the defendant's conviction.

          I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY



      2
       The circuit judge referred to the dismissal of Magett's
NGI plea as a "directed verdict," but, as will be explained
below, the judge's action is more appropriately characterized as
a dismissal because, although Magett testified and offered all
his evidence in the guilt phase, he was not allowed to reoffer
"all evidence" in the responsibility phase.      Therefore, this
opinion will refer to the rejection of Magett's NGI defense as a
dismissal unless the opinion is quoting one of the parties or
referring to their arguments.
      3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                        4
                                                                  No.           2010AP1639-CR



    ¶12       This case arises out of an incident at the Wisconsin

Secure Program Facility (WSPF) in Boscobel in Grant County.                              The

Wisconsin       Department       of     Corrections          describes            WSPF    as

"Wisconsin's      most    secure      facility,"       designed       to    manage       and

control "inmates who demonstrate serious behavioral problems in

other settings."          See Wisconsin Secure Program Facility, Wis.

Dep't     of         Corr.,      http://doc.wi.gov/families-visitors/find-

facility/wisconsin-secure-program-facility                    (last    visited           July

10, 2014).       "Inmates transferred to WSPF have earned their way

to this facility because of behaviors exhibited in alternate

sites.        They have jeopardized the safety and security of the

facility, staff, and/or other inmates."                 Id.

    ¶13       Erick O. Magett was an inmate at WSPF on January 20,

2007.    Magett, then 41, had a long criminal history before he

was convicted of first-degree intentional homicide in 1990 and

sentenced to life in prison.

    ¶14       The events that led to the charge in this case were

set in motion by Magett's frustrations with his access to health
care.     In August 2005 Magett slipped in the shower and began

complaining of pelvic pain.            Magett testified that he had X-rays

taken    in    October   2006.        Although     a   medical    technician             told

Magett that he had a fractured left pelvis, the prison doctor

disagreed      and    informed    Magett       that    there    was        no     fracture.

Magett    expressed       frustration          about   the     level        of      medical

treatment he was receiving and wrote the warden to say, "I do

not want to put my hands on your officers, but if this keep
[sic] going on, somebody going [sic] to end up getting hurt."
                                           5
                                                                No.     2010AP1639-CR



He also told the prison psychiatrist that he knew it would be

wrong to take out his frustrations about the lack of medical

treatment on the officers.

       ¶15        Magett's statements about hurting officers led WSPF to

place       him    on   restrictions.     Before    WSPF      allowed    Magett    to

receive his meals, it required him to sit down with his legs

crossed, put his head against the back wall, and place his hands

behind his back.          Magett claimed that as a result of a fractured

pelvis, he could not cross his legs when sitting down.                       Because

Magett would not sit in the required position, WSPF withheld his

meals.       Magett claimed that WSPF refused to give him his meal on

several occasions4 and that he was unable to resolve the issue

through written or oral complaints.                Therefore, on January 20,

2007, Magett decided to cover the camera in his cell because he

knew       that    obscuring   the    camera    would   attract   attention       and

eventually lead to a team of officers forcibly removing him from

his cell.          WSPF assembled a show-of-force team to extract Magett

from his cell, and the team members suited up in protective
equipment consisting of helmets and padded jumpsuits.                        It was

during       the    extraction   of    Magett    from   his   cell    that   Magett

committed the battery that gave rise to this case.

       ¶16        Before the show-of-force team entered Magett's cell,

both the team's supervisor and the team's leader asked Magett if

       4
       There is some confusion about how many meals Magett
actually missed.  At his sentencing hearing, Magett's attorney
said that Magett received no food for two days prior to the
incident on January 20, 2007, and also went without food for
three days after.

                                          6
                                                                No.     2010AP1639-CR



he would come out voluntarily.                Magett refused.        In preparation

for the cell extraction, and unbeknownst to the show-of-force

team, Magett spread hand cream on his cell floor to slow the

officers down.       He claimed that the purpose of the hand cream

was to hinder the officers and prevent them from hurting him.

Magett put his mattress on the ground and stood on it so that he

would not slip on the lubricated floor.                    Then he removed his

shirt   and    assumed   a   "boxer     stance"    with    raised     fists    as   he

waited for the team to enter.

      ¶17     As the team entered the cell, Magett's ingenuity with

the hand cream caused several officers to lose their footing.

Magett punched the officers in the helmet area as they struggled

toward him.       In the brief period of chaos, one of Magett's

punches caused a cut on Officer Jeremy Caya's (Officer Caya)

chin.   Magett later testified (in the guilt phase of his trial)

that during the incident, he "pretty much blacked out."                          When

asked   to     clarify   what     he    meant     by    "blacked      out,"   Magett

responded, "It was like I'm just gone."                 He insisted that he did
not   remember    hurting    Officer      Caya,    but    he   did    remember      the

officers taking him out of his cell.                     The alleged "blackout"

lasted from the time the officers came into the cell until the

time they restrained him against the cell wall——an interval of a

few seconds.      Corrections officers videotaped the incident, and

the jury saw the tape several times during the guilt phase of

the trial.

      ¶18     Although   Magett        claimed    not     to   remember       hitting
Officer Caya, he did seem to remember swinging his fists at the
                                          7
                                                          No.    2010AP1639-CR



corrections officers.        The following exchange occurred during

Magett's direct examination by his attorney:

       Q: And when [the corrections officers] came in, what
       did you do?

       A: I swung.

       Q: And why were you swinging your fists?

       A: Because they were swinging at me.

       Q: All right.     And were you trying to hurt them?

       A: No, I wouldn't try to hurt nobody.
Magett went on to testify that he blacked out, and his attorney

questioned him about how the corrections officers were hitting

him.       Magett testified that an officer was hitting him between

his legs, that an officer was trying to break his wrist, and

that an officer was choking him.              Just a few questions later,

Magett's      attorney   asked   him   what    he   remembered   after    the

officers came through his cell door.                Magett responded, "Not

much."       On cross-examination, Magett claimed that the officers

punched him in the testicles five or six times.

       ¶19    Because he caused a cut on Officer Caya's chin, Magett

was charged with battery by a prisoner contrary to Wis. Stat.

§ 940.20(1).5     Magett entered a plea of not guilty and not guilty

by reason of mental disease or defect and requested that the



       5
       "Any prisoner confined to a state prison or other state,
county or municipal detention facility who intentionally causes
bodily harm to an officer, employee, visitor or another inmate
of such prison or institution, without his or her consent, is
guilty of a Class H felony." Wis. Stat. § 940.20(1).

                                       8
                                                      No.    2010AP1639-CR



court appoint Dr. Jonathan Lewis (Dr. Lewis), a psychologist, to

perform a mental examination.6

     ¶20   During   Dr.   Lewis's   psychological   evaluation,   Magett

claimed that he was having auditory hallucinations, which began

two weeks prior to the psychological evaluation.             Dr. Lewis's

review of Magett's past records from mental health officials

indicated that Magett "showed no symptoms of thought disorder or

other psychotic features," although he had some complaints of

anxiety    and   depression   and   was   diagnosed   with    antisocial

personality disorder.      Magett and Dr. Lewis also discussed the

cell extraction incident, and Magett told Dr. Lewis that he had


     6
       When a defendant enters an NGI plea, "the court may
appoint    at   least   one   physician    or   at    least one
psychologist . . . to examine the defendant and to testify at
the trial." Wis. Stat. § 971.16(2). The appointed physician or
psychologist prepares a report, which is used as follows:

     [A]ny physician or psychologist appointed under sub.
     (2) shall file a report of his or her examination of
     the defendant with the judge, who shall cause copies
     to be transmitted to the district attorney and to
     counsel for the defendant. The contents of the report
     shall   be   confidential  until   the  physician   or
     psychologist has testified or at the completion of the
     trial.   The report shall contain an opinion regarding
     the ability of the defendant to appreciate the
     wrongfulness of the defendant's conduct or to conform
     the defendant's conduct with the requirements of law
     at the time of the commission of the criminal offense
     charged . . . .

Wis. Stat. § 971.16(3). "If the defendant wishes to be examined
by a physician, psychologist or other expert of his . . . own
choice, the examiner shall be permitted to have reasonable
access to the defendant for the purposes of examination." Wis.
Stat. § 971.16(4).

                                    9
                                                                    No.      2010AP1639-CR



not   eaten      for    five     days    before    the   offense.         As   mentioned

earlier, Magett's attorney clarified at the sentencing hearing

that Magett had not eaten for two days before the incident.

Magett said that "he knew that not coming out of his cell, and

striking      the      officer    were    wrong    but   felt   he     was     justified

because     of    the    poor     attention       to   his   problem      with   getting

food . . . ."          Dr. Lewis concluded:

           If Mr. Magett's account is to be credited he
      participated in the assault of the correctional
      officer knowingly as a way of attracting attention to
      his frustration and difficulties with not receiving
      any food for a period of 5 days.       His description
      indicates that his behavior was purposeful and well
      considered, and was not in response to any disorder
      perception of reality due to mental illness.

                 . . . .

           Absent indication of significant psychiatric
      illness, and given the disparity between his accounts
      of why the alleged offense occur[red] and the
      information in records of contacts with Mr. Magett at
      about the time, there is no basis for concluding that
      he was unable to appreciate the wrongfulness of his
      acts nor that he was unable to conform his behavior to
      the requirements of the law.      Therefore it is my
      recommendation to the court that his plea of Not
      Guilty by Reason of Mental Disease or Defect not be
      endorsed.
      ¶21     When Dr. Lewis determined that Magett did not have a

mental disease or defect, Magett attempted to find a new expert

to do a private evaluation.                Whatever the opinion of the second

expert, Magett chose not to introduce it into evidence.

      ¶22     During the guilt phase of the trial on February 5,

2008, the jury found Magett guilty of battery by a prisoner.
While the jury was deliberating, the court inquired about the

                                            10
                                                         No.   2010AP1639-CR



evidence   that   the   defendant    intended     to   present     at   the

responsibility phase, and defense counsel responded that Magett

would testify that "he was out of it" and would show the video

of the cell extraction again.       After the jury returned a guilty

verdict, the court again asked——outside the jury's presence——

what evidence the defense would present.         The following exchange

took place:

    THE COURT: Okay,     the jury has found the defendant
    guilty, so that      takes us to Phase 2.         Now, I
    understood before    we went out . . . that you weren't
    going to offer any   evidence, [defense counsel]?

    [DEFENSE COUNSEL]: No, Your Honor.
    THE COURT: No evidence at all?

    [DEFENSE COUNSEL]: Just . . . my client's testimony.

    THE COURT: From?

    [DEFENSE COUNSEL]: As what happened.

    THE COURT: Okay, then how are you going to meet your
    burden?

    [DEFENSE COUNSEL]: Your Honor, . . . he doesn't need a
    physician to determine whether he has a mental
    disease.   It's a question for the jury to determine,
    not for a doctor to authorize.

    THE COURT: . . . I don't think that's the case law. I
    just got done reading the Leach case again and you
    have to have some evidence.

    [DEFENSE COUNSEL]:     The   evidence   is    what    my   client
    testified to.

    THE COURT: You have to have medical evidence.

    [DEFENSE COUNSEL]: I don't think it says that.




                                    11
                                                          No.   2010AP1639-CR


     THE COURT: You need to have some evidence that he has
     a mental disease or defect.   Otherwise, . . . how can
     the jury just speculate?

     [DEFENSE COUNSEL]: Well, at the time of the incident
     he said he blacked out.        He doesn't have any
     remembrance of what happened.  I think that fits the
     definition——

     THE COURT: Of what?

     [DEFENSE COUNSEL]: Memory.     He had a loss of memory.

     THE COURT: That's not a mental disease or defect.
     ¶23   Magett's   attorney   went   on   to   argue     that   Magett's

blacking out and loss of memory fit the definition of mental

disease or defect and that she had nothing to offer but the

defendant's prior testimony to this effect.7       The court responded

that the jury already heard Magett's testimony and the defense

needed something more to show mental disease or defect.                  The

court summarized the elements of an NGI plea and said, "You have

to have evidence first of all of mental disease, and second of

all you have to have testimony that he's unable to conform his

behavior."   Later, the court stated that "a doctor has to make

the second part of the analysis."        Giving a hypothetical, the

court declared:

     Even if he can testify that he suffered from, let's
     say, schizophrenia, he still would have to have a
     doctor to come in and say that at the time of this
     incident, that affected his ability to know the
     difference and appreciate the wrongfulness of his
     conduct and conform it to the requirements of the law.

     7
       When the judge told Magett's attorney that she needed some
evidence, she responded, "The evidence is what my client
testified to."     Thus, the defense suggested that its only
evidence was the testimony from the guilt phase of the trial.

                                  12
                                                 No.    2010AP1639-CR


    And without a doctor coming in for the second
    part, . . . I don't think you can meet your burden.
With no other evidence to consider, the court stated:

         Your client's not competent to testify as to
    whether or not he lacks substantial capacity to
    appreciate the wrongfulness of his conduct or conform
    his conduct to the requirements of the law.         He
    doesn't have that capacity.      He doesn't have the
    expertise to say that. . . . So unless you're going
    to produce some evidence to this jury, . . . I'm going
    to have to direct verdict for the State on that
    issue. . . .   I thought you were going to probably
    call Dr. Lewis as a defense witness and bring out
    something in his report.    And then [the prosecutor]
    would cross examine it, because . . . Dr. Lewis didn't
    back up this mental disease and defect.    And he came
    to the opposite conclusion that he . . . did have the
    ability to understand what he was doing was wrong. So
    there's just no evidence to sustain that plea. As far
    as I can tell, you're not going to produce any
    evidence; therefore, if you're not going to produce
    any evidence, I don't have any choice but to find that
    no reasonable juror could conclude on . . . any basis
    that the defendant suffered from a mental disease or
    defect, much less that he lacked substantial capacity
    to appreciate the wrongfulness of his conduct or
    conform it to the requirements of the law as a result
    of the mental disease or defect.
    ¶24    Magett's attorney responded that neither the appointed
expert nor Magett's own privately obtained expert had testimony

favorable to Magett, so there would be no expert testimony to

support the defense in the responsibility phase of the trial.

The court decided not to allow Magett to introduce any more

evidence because, based on defense counsel's description of the

evidence, the court determined that "no evidence that is going

to be produced . . . could give a reasonable juror the ability

to conclude that the defendant suffered from a mental disease or
defect."   Following that, the court "conclude[d] as a matter of

                                13
                                                                      No.    2010AP1639-CR



law that the defendant [was] unable to meet his burden of proof

on the defense of not guilty by reason of mental disease or

defect . . . ."         The court then entered judgment in accordance

with    the    verdict    and     found    Magett    guilty      of     battery     by    a

prisoner.

       ¶25    Magett filed an appeal alleging that the circuit court

erred in denying him the right to proceed to the second phase of

the    bifurcated      trial.      State     v.    Magett,      No.     2010AP1639-CR,

unpublished slip op., ¶1 (Wis. Ct. App. Sept. 27, 2012).                                The

court of appeals did not decide whether the circuit court erred

in ending the trial after the guilt phase and instead held that

any error was harmless.             Id.     The court of appeals noted that

this case presents an unusual circumstance in which the defense

introduced all its evidence in the guilt phase of the bifurcated

trial.        Id., ¶15.      Because the defense had no new evidence

relating to Magett's mental state, the court's refusal to hear

the evidence in the second phase did "not undermine [the court

of     appeals']    confidence       in     the    outcome."           Id.     (citation
omitted).      Given that the defense would produce no new evidence,

and the evidence admitted in the guilt phase of the trial was

insufficient       to     prove     mental        disease       or     defect      by     a

preponderance, the court of appeals concluded that any error by

the circuit court was harmless.              Id., ¶¶19-20.

       ¶26    Magett     petitioned       this    court   for    review,       which     we

granted on March 11, 2013.

                            II. STANDARD OF REVIEW


                                           14
                                                                 No.     2010AP1639-CR



      ¶27   Magett    challenges     the       circuit   court's       determination

that expert testimony is required to prove mental disease or

defect in the responsibility phase of the trial and that Magett

was   not   competent    to    testify     about    his    own    mental       health.

Normally,    the     admissibility        of    evidence,     including         expert

testimony,   is    within     the   circuit      court's    discretion.          Brown

Cnty. v. Shannon R., 2005 WI 160, ¶37, 286 Wis. 2d 278, 706

N.W.2d 269; State v. Sharp, 180 Wis. 2d 640, 649, 511 N.W.2d 316

(Ct. App. 1993).      However, a circuit court erroneously exercises

its discretion if it applies the wrong legal standard.                         Shannon

R., 286 Wis. 2d 278, ¶37; Sharp, 180 Wis. 2d at 649.                      "[W]hether

the circuit court applied the correct legal standard . . . is a

question of law that we review de novo."                  State v. Kramer, 2001

WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35 (citation omitted).

      ¶28   Magett also challenges the circuit court's decision to

grant a "directed verdict" before he presented evidence in the

responsibility       phase     of   the        trial.       Under       Wis.    Stat.

§ 805.14(1):

           No motion challenging the sufficiency of the
      evidence as a matter of law . . . shall be granted
      unless the court is satisfied that, considering all
      credible evidence and reasonable inferences therefrom
      in the light most favorable to the party against whom
      the motion is made, there is no credible evidence to
      sustain a finding in favor of such party.
When a circuit court follows the proper procedure to dismiss a

case or direct a verdict, an appellate court will uphold the

decision unless the circuit court "was clearly wrong."                          Leach,
124 Wis. 2d at 665 (citation omitted).                   Although an appellate


                                       15
                                                                        No.     2010AP1639-CR



court    will   uphold       a      circuit     court's      substantive        decision    in

these circumstances unless it is clearly wrong, the question of

whether the circuit court has the authority to dismiss a case or

direct a verdict before the defendant has an opportunity to

present his evidence in the responsibility phase of a trial "is

a question of law that this court reviews de novo."                                See State

v.    Melton,   2013      WI     65,    ¶22,     349    Wis. 2d 48,       834      N.W.2d 345

(citing State v. McClaren, 2009 WI 69, ¶14, 318 Wis. 2d 739, 767

N.W.2d 550).

       ¶29    Finally, we must consider whether any error by the

circuit court was harmless.                     The harmless error inquiry is a

question of law that this court reviews de novo.                                   Weborg v.

Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816 N.W.2d 191.                                    The

harmless error rule in Wis. Stat. § 805.18 applies to criminal

proceedings via Wis. Stat. § 972.11(1).                        State v. Harvey, 2002

WI    93,    ¶39,   254     Wis. 2d 442,         647    N.W.2d 189.           An    error    is

harmless      unless      "the       error     complained      of   has       affected      the

substantial rights of the party seeking to reverse or set aside
the     judgment,      or      to      secure    a     new    trial."           Wis.     Stat.

§ 805.18(2).        Thus, the harmless error inquiry is whether it is

beyond a reasonable doubt that the jury would have come to the

same conclusion absent the error.                      Harvey, 254 Wis. 2d 442, ¶46

(citing Neder v. United States, 527 U.S. 1, 18 (1999)).                                     The

alternative wording of the test is whether it was "beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained."                 State v. Mayo, 2007 WI 78, ¶47, 301


                                                16
                                                                             No.        2010AP1639-CR



Wis. 2d 642,         734      N.W.2d 115          (citations              omitted)        (internal

quotation marks omitted).

       ¶30    In conducting a harmless error analysis, a reviewing

court    will      have     greater        confidence          in    the     circuit        court's

decision      when      the     evidence         that    was        not    subject        to    error

strongly supported the outcome and when the erroneously excluded

evidence was peripheral.                  Martindale v. Ripp, 2001 WI 113, ¶32,

246 Wis. 2d 67, 629 N.W.2d 698.

                                     III. DISCUSSION

       ¶31    Magett       alleges        that    the    circuit          court        applied      the

wrong substantive law and that the court erred in preventing

Magett from presenting his evidence in the responsibility phase

of the trial.           Magett also contends that the errors were not

harmless.       We address Magett's claims below, but we begin with a

brief   discussion         of      bifurcated         trials    and        the    definition         of

mental disease or defect in Wisconsin.

 A. The Bifurcated Trial and the Definition of Mental Disease or

                                            Defect
       ¶32    We   note       at    the    outset       that    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.          Medina v. California, 505 U.S. 437, 449 (1992)

(citing Powell v. Texas, 392 U.S. 514, 536-37 (1968)) ("[W]e

have    not   said      that       the    Constitution         requires          the     States      to

recognize the insanity defense."); State v. Burton, 2013 WI 61,

¶9, 349 Wis. 2d 1, 832 N.W.2d 611 ("[D]efendants do not have a
fundamental        right       to    an    insanity       plea . . . .");                 State      v.
                                                 17
                                                                               No.    2010AP1639-CR



Francis, 2005 WI App 161, ¶1, 285 Wis. 2d 451, 701 N.W.2d 632

("Neither the federal constitution nor our state constitution

confers a right to an insanity defense or plea.").                                         Nor does

either constitution guarantee a right to a bifurcated trial.

Spencer    v.     Texas,         385      U.S.     554,       568   (1967)     ("Two-part         jury

trials    are     rare      in      our     jurisprudence;            they    have    never       been

compelled        by     this        Court        as      a     matter     of     constitutional

law . . . .");          State          ex    rel.        La     Follette       v.     Raskin,       34

Wis. 2d 607, 625, 150 N.W.2d 318 (1967) (noting that the Supreme

Court of the United States "has not compelled a two-part trial

as a matter of constitutional law or as a matter of federal

procedure"); see also § 1, ch. 221, Laws of 1911 (repealing

bifurcation for an "insanity" defense, which suggests a unitary

trial is not unconstitutional).

    ¶33     This case relates to the bifurcated trial described in

Wis. Stat. §§ 971.15 and 971.165.                             A bifurcated criminal trial

consists    of        two   phases:          (1)       the    guilt     phase;       and    (2)    the

responsibility         phase.             When     a    criminal       defendant       pleads      not
guilty and not guilty by reason of mental disease or defect, the

jury hears evidence relating to the defendant's guilt in the

first phase of the trial, and if the jury finds the defendant

guilty, the trial proceeds to the second phase.                                        Wis. Stat.

§ 971.165(1)(a).               In      the    second          phase,    the    jury        considers

whether the defendant had a mental disease or defect at the time

of the crime and 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
                                                   18
                                                         No.   2010AP1639-CR



or   her    conduct   to   the   requirements   of   law."     Wis.   Stat.

§ 971.15(1).

      ¶34    The responsibility phase described above has evolved

over time and has now become close to a civil trial.

      ¶35    The history of NGI trials is instructive.           Wisconsin

has recognized an insanity defense since statehood.             Wis. Rev.

Stat. ch. 148, § 13 (1849).8          In 1878, as part of a general

revision of the statutes, the legislature separated the insanity

determination (or responsibility) phase of a criminal trial from

the "main case" and directed that the responsibility phase be

tried first.     Wis. Rev. Stat. ch. 191, §§ 4697-99 (1878).9          This

      8
          The 1849 Revised Statutes provided:

           When any person, indicted for an offence, shall
      on trial be acquitted by the jury by reason of
      insanity, the jury, in giving their verdict of not
      guilty, shall state that it was given for such cause;
      and thereupon, if the discharge or going at large of
      such insane person shall be considered by the court
      manifestly dangerous to the peace and safety of the
      community, the court may order him to be committed to
      prison, or may give him into the care of his friends,
      if they shall give bonds with surety to the
      satisfaction of the court, conditioned that he shall
      be well and securely kept, otherwise he shall be
      discharged.

Wis. Rev. Stat. ch. 148, § 13 (1849).
      9
       Wisconsin Rev. Stat. ch. 191, § 4697 (1878) says that when
a defendant pursues an insanity defense with an NGI plea:

      [T]he court shall order a special plea, setting up and
      alleging such insanity, to be filed on his behalf,
      with the plea of not guilty, and the special issue
      thereby made shall first be tried, by the jury
      selected and sworn to try said cause; and, if such
      jury shall find, upon such special issue, that such
                                     19
                                                          No.   2010AP1639-CR



procedure lasted until the 1911 session of the legislature when

the separation was discontinued.           § 1, ch. 221, Laws of 1911.10

       ¶36   In     1967   this   court     reinstalled   bifurcation    but

required the guilt phase to precede the responsibility phase.

See Raskin, 34 Wis. 2d at 623, 627.              The legislature codified

Raskin's bifurcation procedure in Wis. Stat. § 971.175 (1969-

70).    See Burton, 349 Wis. 2d 1, ¶46 (citing § 63, ch. 255, Laws

of 1969).         The legislature has since recodified bifurcation in

Wis. Stat. § 971.165 but "maintained 'the basic bifurcated trial

       accused person was so insane, at the time of the
       commission of such alleged offense, they shall, also,
       find him not guilty of such offense, for that
       reason . . . .

The Report and Explanatory Notes of the Revisers of the
Statutes, Accompanying the Bill to Revise the General Laws of
Wisconsin explained why the insanity defense was revised in
1878:

       [The insanity defense] is a difficult and complicated
       question in all cases, and its consideration and
       decision should not be further complicated and
       confused with the mass of evidence in the main case,
       but should be specially considered and decided upon
       its own merits. This is fully provided for by special
       plea. It is to be filed with the general issue and is
       to be tried first. It is needless to have two juries
       and much more expensive.

Report and Explanatory Notes of the Revisers of the Statutes,
Accompanying the Bill to Revise the General Laws of Wisconsin,
submitted to the Legislature of 1878, 314 (1878).
       10
       The 1911 revision of the statute kept much of the same
language as the 1878 version, but it required a unitary rather
than a bifurcated trial.      The 1911 version of the statute
provided that the NGI issue "shall . . . be tried . . . and
determined by the jury with the plea of not guilty . . . ."
§ 1, ch. 221, Laws of 1911 (first two ellipses in original).

                                      20
                                                                 No.      2010AP1639-CR



procedure         with    its      sequential   order    of     proof        as   first

established in Raskin.'"             Id. (quoting State v. Murdock, 2000 WI

App 170, ¶23, 238 Wis. 2d 301, 617 N.W.2d 175); see 1987 Wis.

Act 86.

       ¶37    As    the    bifurcation     procedure     evolved,       so    did     the

burden of proof for showing mental disease or defect.                             Before

this court reinstalled bifurcation in 1967, the state had to

demonstrate beyond a reasonable doubt that the defendant did not

have    a    mental      disease    or   defect.   See       State   v.      Esser,    16

Wis. 2d 567, 588, 115 N.W.2d 505 (1962); see also Wis. Stat.

§ 957.11 (1967).11          For many years, the state had to prove that

the defendant did not have a mental disease or defect under a

version      of    the    M'Naghten12     definition    of    mental      disease     or


       11
        "[I]f the jury finds that the defendant was insane or
feeble-minded or that there is reasonable doubt of his sanity or
mental responsibility at the time of the commission of the
alleged crime, [the jury] shall find the defendant not guilty
because insane or feeble-minded."       Wis. Stat. § 957.11(1)
(1967).
       12
       M'Naghten's Case was an English decision in which the
House of Lords determined that a defendant is insane if, "at the
time of the committing of the act, the party accused was
laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he was
doing; or, if he did know it, that he did not know he was doing
what was wrong."   State v. Esser, 16 Wis. 2d 567, 575 & n.19,
115 N.W.2d 505 (1962) (citing M'Naghten's Case, (1843) 8 Eng.
Rep. 718 (H.L.); 10 Cl. & Fi. 200, 210-11). Wisconsin's version
of the M'Naghten rule stated that insanity was "such abnormal
mental condition, from any cause, as to render the accused at
the time of committing the alleged criminal act, incapable of
distinguishing between right and wrong and so unconscious at the
time of the nature of the act which he is committing . . . ."
Oborn v. State, 143 Wis. 249, 268, 126 N.W. 737 (1910).

                                           21
                                                                  No.    2010AP1639-CR



defect.       See    Esser, 16      Wis. 2d at 597;       see also       M'Naghten's

Case, (1843) 8 Eng. Rep. 718 (H.L.); 10 Cl. & Fi. 200.                      However,

the tide began to turn when this court decided to give the

defendant     the    choice    to    take   on   the    burden    to    prove   mental

disease or defect by a preponderance of the evidence under the

less    stringent      American      Law    Institute    (ALI)     definition13     of

insanity.      State v. Shoffner, 31 Wis. 2d 412, 427, 143 N.W.2d

458 (1966).

       ¶38    The ALI definition is less rigorous than the M'Naghten

version "both because it permits a finding of insanity upon an

additional ground, and because it requires a lack of substantial

capacity and does not imply that a total lack of capacity is

required."          Esser,    16    Wis. 2d at    596.    When    the    legislature

codified Raskin in 1969, it adopted a new standard and also

shifted the burden to the defendant to prove mental disease or

defect by a preponderance of the evidence.                  § 63, ch. 255, Laws

of 1969.       The definition of "mental disease or defect" that

applies to this case is almost identical to the ALI definition:
"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


       13
        "A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
he   lacks  substantial   capacity  either   to  appreciate  the
criminality [wrongfulness] of his conduct or to conform his
conduct to the requirements of law." Model Penal Code § 4.01(1)
at 66 (Proposed Official Draft 1962) (brackets in original).

                                            22
                                                                      No.    2010AP1639-CR



to the requirements of law."              Wis. Stat. § 971.15(1).              While the

statutes do not define "mental disease or defect," the Wisconsin

criminal jury instructions provide a definition: "Mental disease

or     defect     is     an    abnormal       condition        of    the     mind    which

substantially affects mental or emotional processes."                           Wis JI——

Criminal 605 (footnote omitted).

       ¶39     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.           As already noted, the defendant has the burden

of proof to show mental disease or defect by the greater weight

of   the     credible     evidence,     the      same   burden      imposed    for    most

issues in civil trials.             See Kuehn v. Kuehn, 11 Wis. 2d 15, 26,

104 N.W.2d 138 (1960) (noting that the proof required to carry

the burden "in ordinary civil cases may be attained by or be

based on a mere or fair preponderance of the evidence").                            In the

responsibility phase, 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.            See Leach, 124 Wis. 2d at 663.                In contrast,

the judge may not direct a verdict against a criminal defendant

in a criminal trial because it is up to the jury to find whether

the state has proven all essential elements of a crime beyond a

reasonable       doubt.        State   v.     Peete,     185    Wis. 2d 4,      19,     517

N.W.2d 149 (1994).             Also, because the responsibility phase is

not a criminal proceeding, the defendant need obtain only a
five-sixths verdict on the issue of mental disease or defect to
                                            23
                                                                   No.     2010AP1639-CR



carry his burden.           State v. Koput, 142 Wis. 2d 370, 396-97, 418

N.W.2d 804 (1988).

       ¶40    Considering       the    elements     of   civil   procedure     in    the

responsibility        phase,     "it    is    demonstrably       evident     that    the

responsibility phase is not a part of a 'criminal' trial."                           Id.

at 395.       The 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

category of its own.            See id. at 394-97.

 B. Expert Testimony in the Responsibility Phase of a Bifurcated

                                         Trial

       ¶41    Magett argues that the court erred in requiring expert

testimony to prove mental disease or defect and in stating that

the defendant is not competent to testify regarding his own

mental health.         Although expert testimony may be helpful to a

defendant      in    the    responsibility        phase    of    the     trial,     "[a]

favorable expert opinion is not an indispensable prerequisite to
a finding of mental disease or defect."14                  Leach, 124 Wis. 2d at

666.
       14
       "From a purely technical standpoint, one could argue that
because the jury is not bound by medical definitions or labels,
Wis. [Stat.] § 971.15 does not require such an opinion or even
an expert diagnosis of any particular disability." 9 Christine
M. Wiseman & Michael Tobin, Criminal Practice & Procedure
§ 17:40, at 549 (Wisconsin Practice Series, 2d ed. 2008) (citing
State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240 (1985)).
However, from a practical standpoint, if a defendant were to try
to carry his burden in the responsibility phase of the trial
without offering an expert's opinion, he would risk a motion for
dismissal or for a directed verdict from the prosecution. Id.

                                             24
                                                                             No.     2010AP1639-CR



       ¶42        Leach    is     consistent           with    other       cases      that      have

determined that "expert testimony is required only if the issue

to be decided by the jury is beyond the general knowledge and

experience of the average juror."                        State v. Perkins, 2004 WI App

213,    ¶16,       277    Wis. 2d 243,           689   N.W.2d 684          (quoting       State    v.

Whitaker, 167 Wis. 2d 247, 255, 481 N.W.2d 649 (Ct. App. 1992)).

In Perkins, the court determined that no expert was required to

testify as to a rape victim's mental illness or deficiency.

Id., ¶¶19-20.             The victim's caregiver testified that the victim

could       not    carry     on   an       intelligible           conversation,       could       not

remember          things     earlier        in    the       day,     and     needed       constant

supervision because of her mental issues.                             Id., ¶22.        The court

noted that no statute required expert testimony on the victim's

mental       condition,         and   no    Wisconsin         precedent      existed       on     the

issue.        Id., ¶¶19-21.            The lay testimony about the victim's

mental issues was sufficient to allow a jury to determine that

she    had    a     mental      deficiency,        and      the    matter     was    within       the

common understanding of the jury.                       Id., ¶¶21, 23.
       ¶43        Thus,     where      the        issue       is      within        the      common

understanding of a jury, as opposed to technical or esoteric,

and when lay testimony speaks to the mental illness, expert

testimony, though probative, may not be required.                                     Id., ¶¶20,

23.     This is not to say that expert testimony is never required

in    the    responsibility           phase       of    a   trial;     however,       there       are

instances in which lay testimony will be enough to satisfy the

defendant's burden of proof.


                                                  25
                                                                         No.     2010AP1639-CR



      ¶44    In the present case, it is at least conceivable that

Magett could have carried his burden with lay testimony.                                  For

example,     he    could     have   had      relatives        or    people        who    spent

substantial amounts of time with him testify that he had lapses

in consciousness in which he seemed unable to appreciate what he

was   doing       and    could   not     remember       the    episodes           afterward.

Whether     expert      testimony   is       required    in    a        given    case    is   a

discretionary decision left to the circuit court.                               See State v.

Kandutsch, 2011 WI 78, ¶23, 336 Wis. 2d 478, 799 N.W.2d 865; cf.

State v. Pittman, 174 Wis. 2d 255, 267-68, 496 N.W.2d 74 (1993).

However, the circuit court must examine the facts, apply the

correct     legal       standard,      and    reach     a     rational           conclusion.

Kandutsch, 336 Wis. 2d 478, ¶23; Pittman, 174 Wis. 2d at 268.                                 A

circuit court should also discuss its reasoning for its decision

to require expert testimony.                  See Kandutsch, 336 Wis. 2d 478,

¶23; cf. Pittman, 174 Wis. 2d at 268.                   In this case, it appears

that the circuit court cited Leach for the principle that Magett

had   to    have        "a   doctor . . . come          in"        to     present       expert
testimony, a proposition that Leach does not support.                                    There

will be instances in which medical testimony is required if the

defendant is to have any chance of carrying his burden, but this

is not always the case.             Therefore, the circuit court erred in

declaring that expert testimony was required, but the error was

harmless.

      ¶45    Magett was found guilty in a criminal trial.                            His NGI

defense was to be presented in a second phase of the trial at
which he had the burden of proof.                 The law on NGI procedure is
                                             26
                                                                  No.        2010AP1639-CR



statutory, not constitutional.                 An error related to statutory

procedure is more likely to be harmless when there is strong

evidence to support the outcome and when the error does not

affect a constitutional right.              Martindale, 246 Wis. 2d 67, ¶32.

       ¶46    Although     expert     testimony       is    not     required,         the

defendant must present evidence to allow the jury "to make the

affirmative determination of mental disease or defect."                           Leach,

124 Wis. 2d at 666.         In Leach, the defendant claimed that, among

other     things,       evidence    of    his     "peculiar       look"       prior    to

committing the crime and evidence of a head injury provided

sufficient evidence to send the question of mental disease or

defect       to   the    jury.      Id.     at    665-67.         The     defendant's

psychiatrist and a psychologist testified that they could not

determine whether the defendant had a mental disease or defect.

Id. at 665.       The court determined that a "strange look" does not

have "any probative value of mental state or condition."                          Id. at

667.     In addition, the defendant's inability to remember certain

details was insufficient to demonstrate mental disease or defect
because       "[e]pisodic        amnesia,       the   inability         to      remember

committing a crime, is not evidence of mental disease or mental




                                          27
                                                             No.   2010AP1639-CR



defect."15    Id. at 657 n.2, 667.          After the defendant presented

his evidence in the responsibility phase of the Leach trial, the

court properly granted dismissal in favor of the state on the

issue of mental disease or defect because no reasonable juror

could conclude that he had a mental disease or defect or "that

he lacked substantial capacity to appreciate the wrongfulness of

his conduct."       Id. at 652, 667.

     ¶47     Although     an   NGI   defense    does   not    require   expert

testimony,     it    is   highly     unlikely   that   a     defendant's    own

testimony, standing alone, will be sufficient to satisfy the




     15
        "Amnesia is most clearly and simply defined as 'loss of
memory.'    It is an inability to recall events known to have
occurred within the presence of the patient or events of which
the patient would have knowledge, but for the amnesia."
Jonathan M. Purver, Annotation, Amnesia as Affecting Capacity to
Commit Crime or Stand Trial, 46 A.L.R.3d 544, 550 (1972).
Episodic amnesia occurs when a defendant "cannot remember a
criminal act subsequent to its commission" and is often
associated with overconsumption of alcohol.     Chad J. Layton,
Comment, No More Excuses: Closing the Door on the Voluntary
Intoxication Defense, 30 J. Marshall L. Rev. 535, 558 (1997)
(citing Jackson v. State, 253 S.E.2d 874, 876 (Ga. Ct. App.
1979)).     The aversion to considering episodic amnesia as
evidence of mental disease or defect appears well-founded
because defendants may easily pretend to have amnesia.       See
James E. Tysse & Thomas L. Hafemeister, Amnesia and the
Determination of Competency to Stand Trial, 25 Dev. Mental
Health L. 65, 67 (2006) (footnote omitted) ("Amnesia is complex
and varied, but because amnesia is relatively easily feigned and
can be advantageous to the person claiming amnesia, it is likely
that many amnesia claims are fabricated.").

                                       28
                                                                         No.     2010AP1639-CR



burden     of    proof.16       Leach       is       particularly    informative           here

because of the factual similarities to the present case.                                  Like

the defendant in Leach, Magett claims that his loss of memory is

evidence of mental disease or defect.                        Leach is very clear that

such a momentary lapse in memory does not evince mental disease

or defect.        Id. at 667.        Perhaps recognizing that Leach presents

a    formidable       obstacle       to    his       defense,    Magett        altered     his

argument slightly.            In his brief to this court, Magett claimed

that it was not merely a loss of memory, but also a loss of

consciousness.

      ¶48       We understand Magett's argument to be that a loss of

consciousness means that Magett was unaware of the incident as

it   was    occurring——that          he    never       consciously       experienced       it.

Therefore,       he   does     not    remember         it,    and   in     his     state    of

unconsciousness,         he    did        not    have     substantial          capacity     to

appreciate the wrongfulness of his actions or to conform his

conduct to the law.              Arguably, if he were experiencing only

episodic amnesia, Magett could have been conscious and could
have had substantial capacity to understand the wrongfulness of

his conduct and to conform his behavior to the law but would not


      16
       See 1 Wayne R. LaFave, Substantive Criminal Law § 8.2(c),
at 588 (2d ed. 2003) (footnote omitted) ("Lay testimony is
unlikely to be sufficient either in effectively presenting an
insanity defense or in rebutting such a defense.").    Thus, lay
witnesses may testify, but "a persuasive case is unlikely to be
made on lay testimony alone."   Id., § 8.3(b), at 603 (footnote
omitted) (internal quotation marks omitted). This is even more
true when the defendant's testimony is the only defense
evidence.

                                                29
                                                          No.    2010AP1639-CR



remember it.    The problem is that Magett's testimony for either

unconsciousness or episodic amnesia would be the same——that he

did not remember the incident.           Based on that testimony, there

would be a chance that Magett's inability to remember was due to

lack of consciousness and a roughly equal chance it was due to

episodic    amnesia.        Thus,   Magett     cannot    prove      his     own

unconsciousness by his testimony alone.              To allow the jury to

deliberate on that issue based only on Magett's testimony would

be akin to asking the members of the jury to flip a coin.                 There

must be more for the jury to consider.

      ¶49   Similar to the defendant in Leach, Magett claims that

a look in his eyes revealed a mental disease or defect.                   While

the eyes may be windows to the soul,17 their transparency does

not   accurately   reveal   a   person's    mental    well-being.         Thus,

Magett's change in visage, even if it were visible on the video,

is not probative evidence of his mental health.                 Even if the

court had ruled that expert testimony was not               necessary for

Magett to carry his burden, there is little doubt that the court
would have determined Magett's evidence to be insufficient to

prove mental disease or defect as a matter of law, and thus the

outcome would not have been different.

      17
       The idea that the eyes are windows to the soul is
attributed to Cicero.    See Alexis Tadié, Sterne's Whimsical
Theatres of Language: Orality, Gesture, Literacy 50 (2003);
Cicero, Cicero's Tusculan Disputations 35 (Andrew P. Peabody
trans., 1886). Cicero was a "Roman statesman, orator, essayist,
and letter writer." "Cicero, Marcus Tullius (106-43 B.C.)," in
The Cambridge Dictionary of Philosophy 143, 143 (Robert Audi
ed., 2d ed. 1999).

                                    30
                                                                          No.     2010AP1639-CR



       ¶50     Magett's   burden       at    the       responsibility         phase     of     the

trial was to produce enough evidence to prove——by the greater

weight of the credible evidence——that he had a mental disease or

defect and that, as a result, he lacked substantial capacity

either    to    appreciate      the    wrongfulness           of    his    conduct        or    to

conform      his   conduct     to     the    requirements          of     law.        From     the

discussion between the judge and defense counsel, it is clear

that Magett did not have enough evidence to carry his burden.

Moreover, the court knew that the State had substantial evidence

that Magett did not have a mental disease or defect and did not

lack substantial capacity to control his conduct.

       ¶51     The voluminous evidence against Magett is relevant to

a harmless error analysis.                  Prior to missing any meals, Magett

wrote the warden threatening that someone would get hurt if

Magett did not get the medical treatment that he wanted.                                       The

letter    demonstrates         that    Magett          was    thinking        about    hurting

someone before the incident.                  Magett prepared for the incident

by spreading cream on the floor and standing on his mattress to
give   himself      the      upper    hand     in       the   fight.            Perhaps      most

detrimental to Magett's NGI plea is Dr. Lewis's determination

that "there is no basis for concluding that [Magett] was unable

to   appreciate     the      wrongfulness         of    his    acts     nor     that    he     was

unable to conform his behavior to the requirements of the law."

The court knew that Dr. Lewis was prepared to testify for the

State.

       ¶52     Magett   is    essentially          claiming        that    he     consciously
prepared for an altercation but was not conscious for the few
                                             31
                                                             No.    2010AP1639-CR



seconds during which he committed the criminal act of battery by

a prisoner.       He claims to remember an officer hurting his wrist

and choking him; he claims to remember officers hitting him in

the testicles; he clearly remembers swinging at the officers.

Yet his powers of recollection fail him for the instant during

which he struck Officer Caya.          Magett clings to the notion of a

fortuitous blackout as proof of mental disease or defect.                   Even

if a court were to accept the claim of a blackout, Magett did

not have enough evidence to carry his burden.               Testimony that he

was unconscious because he did not remember the incident is not

enough to prove mental disease or defect by the greater weight

of the credible evidence as a matter of law.                   Therefore, we

conclude that the circuit court would have dismissed Magett's

mental disease or defect defense even if he had been permitted

to present all his testimony in the responsibility phase of the

trial.

     C. A Defendant's Competency to Testify in the Responsibility

                       Phase of a Bifurcated Trial
       ¶53   Magett also argues that the circuit court erred when

it determined that Magett was not competent to testify to his

own mental health.         Although the court said that Magett was not

competent to testify, it seems more likely that the court meant

to say that Magett was not qualified to testify to more than a

description of his mental condition——that he was not qualified

to    give   an   expert   opinion   that   he   had   a   mental   disease   or

defect.      If the circuit court held such a view, it would relate
back to the court's belief that Magett was required to present
                                      32
                                                                             No.     2010AP1639-CR



expert       testimony.             The     court       stated,         "Your      client's      not

competent to testify as to whether or not he lacks substantial

capacity to appreciate the wrongfulness of his conduct . . . .

He doesn't have the expertise to say that."

       ¶54     The     value        and     credibility            of    Magett's      projected

testimony was highly suspect, but he was "competent" to give

that        testimony        and        should    not    have       been        precluded     from

testifying in the responsibility phase of the trial, if at all,

unless and until his testimony entered into the realm of expert

opinion.

       ¶55     Stated differently, "Every person is competent to be a

witness       except     as    provided          by    ss.    885.16      and     885.17    or    as

otherwise       provided           in    these    rules."           Wis.     Stat.     § 906.01.

However, the Judicial Council, which presented this rule to the

Supreme       Court     in    1973,        observed      in    a    note    that     judges      may

determine sufficiency and juries retain their role of assessing

the weight and credibility of the evidence.                                Wisconsin Rules of

Evidence, 59 Wis. 2d Ri, R157-58 (1973).
       ¶56     Because there is no exception in Wis. Stat. § 906.01

for    defendants        who       have     entered      an     NGI      plea,18     Magett      was

competent to testify.                    This does not mean, however, that his

testimony alone was "sufficient" to raise a question for the

jury.        As the Judicial Council Committee noted, judges retain

the ability to assess sufficiency of evidence.                              Id.
       18
       "[P]roof of mental deficiency ordinarily has the effect
of reducing the weight to be given to testimony rather than
keeping the witness off the stand."        Kenneth S. Broun, 1
McCormick on Evidence § 62 (7th ed. 2013).

                                                  33
                                                         No.     2010AP1639-CR



      ¶57    It also does not mean that Magett would have had no

limits on what he could say.

      ¶58    In 2008 at the time of Magett's trial, Wis. Stat.

§ 907.01 provided that:

           If the witness is not testifying as an expert,
      the witness's testimony in the form of opinions or
      inferences is limited to those opinions or inferences
      which are rationally based on the perception of the
      witness and helpful to a clear understanding of the
      witness's testimony or the determination of a fact in
      issue.
When the rule was adopted as part of the rules of evidence, the

Judicial Council Committee's Note asserted that "the rule is

applicable when the witness is not testifying as an expert.                The

rule does not allow the lay witness to testify when the subject

of   his    testimony   requires    expertise."      Wisconsin     Rules    of

Evidence, 59 Wis. 2d at R205 (emphasis added).

      ¶59    A few months after the new rules took effect, this

court      decided   Simpson   v.   State,   62   Wis. 2d 605,     609,    215

N.W.2d 435 (1974), in which it said:

           The general rule in Wisconsin is that the
      admission of opinion evidence rests largely in the
      discretion of the trial court.     York v. State, [45
      Wis. 2d 550, 559, 173 N.W.2d 693 (1970)]. The opinion
      testimony of lay witnesses has been admitted in
      evidence on many subjects. . . .    However, the fact
      that lay witnesses' opinion testimony on the issue of
      insanity has been sanctioned, does not mean that these
      cases stand for the proposition that a lay witness
      categorically has the right to give opinion testimony
      on the issue of insanity.
      ¶60    A defendant who gives a lay opinion as to his own——
presumably, temporary——insanity at the time of his crime is not


                                      34
                                                            No.    2010AP1639-CR



likely to be very credible unless he is supported by other lay

and especially expert witnesses.              The defendant has the burden

of proof, he is subject to cross-examination, and his testimony

may be rebutted by the state's witnesses, including the state's

experts.     Thus, there should normally be little concern about a

defendant's opinion that he has a mental disease or defect and

lacks the substantial capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of

law.    Nonetheless, no "lay witness categorically has the right

to give opinion testimony on the issue of insanity."                    Simpson,

62 Wis. 2d at 609 (emphasis added).

       ¶61   In this case, even if the circuit court had ruled that

Magett was competent to testify and Magett had opined that he

was afflicted with a mental disease or defect temporarily when

he   committed     the   crime,    the   circuit   court   would    have   been

justified     in   dismissing      Magett's    mental   disease    or    defect

defense because Magett did not have sufficient evidence for a

reasonable jury to conclude that he had a mental disease or
defect.      Therefore, the court's errors in requiring Magett to

produce medical testimony and in determining that Magett was not

competent to testify did not affect Magett's substantive rights

under the facts of this case.             The circuit court's errors were

harmless.

                     D. The Timing of the Dismissal

       ¶62   At the conclusion of the guilt phase but before the

responsibility      phase,   the    circuit     court   decided    "to   direct
verdict for the State."         The court made this decision before the
                                         35
                                                                   No.     2010AP1639-CR



defendant        was      able     to     introduce       any    evidence      in    the

responsibility phase of the trial because the court determined

that the evidence, which the judge had seen during the guilt

phase, was insufficient to prove mental disease or defect as a

matter     of    law.      Magett       contends   not    only   that    the   directed

verdict was improper but also that——because of the timing——it

was not a "directed verdict" at all.

      ¶63       Wisconsin        Stat.    § 805.14(3)-(4)        provide       for   two

possible motions challenging the sufficiency of evidence before

a verdict: (3) a motion to dismiss at the close of plaintiff's

evidence,19 and (4) a motion for directed verdict or dismissal at

the close of all evidence.20               Under subsec. (3), the proper time

to   move       for    dismissal     on    grounds    of    insufficiency       of   the

evidence is at "the close of plaintiff's evidence in trials to

the jury."            Wis. Stat. § 805.14(3).            This is what happened in

      19
           Wisconsin Stat. § 805.14(3) provides:

           At the close of plaintiff's evidence in trials to
      the jury, any defendant may move for dismissal on the
      ground of insufficiency of evidence. If the court
      determines   that   the  defendant   is  entitled   to
      dismissal, the court shall state with particularity on
      the record or in its order of dismissal the grounds
      upon which the dismissal was granted and shall render
      judgment against the plaintiff.
      20
           Wisconsin Stat. § 805.14(4) provides:

           In trials to the jury, at the close of all
      evidence, any party may challenge the sufficiency of
      the evidence as a matter of law by moving for directed
      verdict or dismissal or by moving the court to find as
      a matter of law upon any claim or defense or upon any
      element or ground thereof.

                                             36
                                                                  No.   2010AP1639-CR



Leach——Leach presented all his evidence in the responsibility

phase of the trial——even though the court said that "the court

directed a verdict."            Leach, 124 Wis. 2d at 652.              The circuit

court in this case also referred to a "directed verdict" even

though a directed verdict under subsec. (4) is to be entered

only "at the close of all evidence."                     Wis. Stat. § 805.14(4)

(emphasis added).

       ¶64    Magett argues that the circuit court's action was not

a directed verdict but, rather, more like a summary judgment

under Wis. Stat. § 802.08.               However, that statute requires the

moving party to serve the motion for summary judgment 20 days

before      the   hearing,   and    it   is    clear   that   the   procedure    for

summary judgment was not followed in this case.                     See Wis. Stat.

§ 802.08.

       ¶65    Magett     raises     valid      points.        A     circuit    court

ordinarily must hear all the evidence of the party against whom

a dismissal motion is directed before dismissing a matter for

insufficient evidence.             Technically, a circuit court must hear
"all    evidence"      before   directing      a   verdict.       See   Wis.   Stat.

§ 805.14(4).21       However, the unusual posture of this case, which

allowed      the circuit court        to assess all the           defendant's NGI

evidence before the commencement of the responsibility phase,

places the circuit court's action in legal liminality——somewhere

       21
       Allowing the defendant an opportunity to offer all his
evidence ensures that any dismissal or directed verdict is based
on full consideration of the defendant's position, conforms to
Wis. Stat. § 805.14(1) and (3) or (4), and reduces the
procedural grounds for appeal.

                                          37
                                                                    No.     2010AP1639-CR



between a proper and improper grant of a motion to dismiss at

the close of the "plaintiff's" evidence.                     Under the statute, a

court    may    dismiss     if    "considering    all    credible         evidence   and

reasonable inferences therefrom in the light most favorable to

the party against whom the motion is made, there is no credible

evidence to sustain a finding in favor of such party."                               Wis.

Stat. § 805.14(1).          Here, the circuit court was able to consider

all credible evidence, and if it were not for the timing, the

dismissal unquestionably would have been proper.                          In short, it

was not clearly wrong to conclude that Magett had insufficient

credible evidence.          Whether the timing of the dismissal was an

error is another matter.              Because any error in the timing was

harmless, however, we note only that it is preferable, fairer,

and more judicious to allow a defendant to put on his evidence

in the responsibility phase before dismissing the NGI defense.

    ¶66        Even   if    the    dismissal     or    "directed          verdict"   was

premature,       we   confidently      conclude       that    the   timing      of   the

dismissal did not affect the outcome of the case.                         As discussed
above, Magett's evidence was insufficient to prove that he had a

mental    disease      or   defect    as   a    matter       of   law.       Therefore,

assuming       that   the   circuit    court's    dismissal         was     erroneously

premature, the error was harmless.

                                   IV. CONCLUSION

    ¶67        We reach the following conclusions.

    ¶68        First, as a general rule, a defendant is not required

to present expert testimony to prove the elements of his NGI
defense.       Leach, 124 Wis. 2d at 666.             Ordinarily, the defendant
                                           38
                                                                      No.    2010AP1639-CR



will offer expert testimony.                 He may also offer testimony by lay

witnesses as well as his own testimony.                       As a practical matter,

a     defendant   should        offer     evidence       to    supplement         his   own

testimony      because          a     defendant       who       testifies         in     the

responsibility       phase      of     his    trial   without      corroboration          is

likely to be viewed as self-serving inasmuch as the purpose of

his     defense   is      to    escape       responsibility       for       his    already

established criminal conduct.                 In only an exceptional case with

extraordinary facts may a defendant carry his burden in the

responsibility phase of a criminal trial by relying solely on

his own testimony.

       ¶69   Second, a defendant is competent to testify as to his

mental    condition       in    the    responsibility         phase    of    a    criminal

trial.       However, a lay defendant does not have an unlimited,

categorical right to give opinion testimony on the issue of

mental disease or defect.

       ¶70   Third, a court should normally permit a defendant to

offer his evidence in the responsibility phase of a trial before
the court rules on his NGI defense.                     By allowing the defendant

an opportunity to offer all his evidence, the court ensures that

any     dismissal        or    directed       verdict     is     informed         by    full

consideration       of    the       defendant's    position,      conforms        to    Wis.

Stat. § 805.14(1), and (3) or (4), and reduces the procedural

grounds for appeal.             There will not be many cases where the

defendant's position is so bereft of merit that the court can

conclude that there is no jury question as a matter of law
before the defendant presents his evidence.
                                              39
                                                              No.   2010AP1639-CR



    ¶71     Fourth, we conclude here that the evidence to support

the defendant's NGI defense was insufficient as a matter of law,

so that any errors by the circuit court in refusing to allow the

trial to proceed to the responsibility phase were harmless.                   We

conclude that no reasonable jury would have determined that the

defendant had a mental disease or defect that caused him to lack

substantial     capacity   to    understand     the   wrongfulness      of    his

conduct or to conform his conduct to the requirements of law.

    ¶72     Accordingly, we affirm the court of appeals' decision

to uphold the defendant's conviction.

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

affirmed.




                                      40
                                                                       No.    2010AP1639-CR.ssa




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

majority opinion says it is doing one thing but does another.

      ¶74     First,     the     majority       opinion         professes         to      use    the

standard in State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240

(1985), regarding expert testimony for the responsibility phase

of a bifurcated trial but instead converts it into a vague and

unmanageable       standard      of     its    own    fashioning.              Whereas          Leach

clarifies that no expert testimony is needed and lay testimony

alone    is   sufficient        to    prove     mental      disease          or   defect,        the

majority opinion declares, without citation to any authority,

that "[i]n only an exceptional case with extraordinary facts may

a defendant carry his burden in the responsibility phase of a

criminal      trial      by     relying       solely       on    his     own      testimony."

Majority op., ¶7.              The majority opinion does not explain what

makes cases "exceptional" or facts "extraordinary."

      ¶75     Second,     the        majority       opinion       professes          to     merely

address the "timing" of the directed verdict, when in fact it
addresses the ability of a defendant to offer any evidence,

specifically       his    own     testimony,         to    show       mental       disease        or

defect.       In   the        instant    case,       the    circuit          court     heard      no

testimony on the defendant's alleged mental disease or defect.

The   entire    second        phase     of    the    trial      was    precluded           by    the

circuit court's sua sponte moving and granting its own motion

for a directed verdict in favor of the State.                                Defense counsel

did     not   appear     to     understand          that    the       circuit        court       was



                                               1
                                                               No.   2010AP1639-CR.ssa


preparing to grant a directed verdict on its own motion in favor

of the State.

      ¶76    Perhaps the defendant would have been unable to meet

his burden to prove that he was not guilty by reason of mental

disease or defect, but how could the circuit court know without

giving   the    defense   attorney     the     opportunity       for    a   full   and

proper proffer?      Perhaps the defendant would not have persuaded

the jury, but that is not the appropriate test for precluding

the defendant's testimony.

      ¶77    Finally,     the       majority     opinion         concludes         that

deprivation of a defendant's right to present evidence and his

own testimony is not preferable, not fair, and not judicious.

The majority opinion proclaims "that it is preferable, fairer,

and more judicious to allow a defendant to put on his evidence

in the responsibility phase before dismissing the NGI defense."

Majority op., ¶65.          Curiously, given the choice, the majority

opinion opts to endorse the less preferable, less fair, and less

judicious procedure here.
      ¶78    The majority opinion holds that the errors that led to

the   circuit     court's    blanket        exclusion     of     the    defendant's

testimony through a directed verdict prior to the presentation

of the defendant's evidence were harmless and "did not affect

[the defendant's] substantive rights under the facts of this

case."      Majority op., ¶61.        In so doing, the majority opinion

fails to confront the true nature of a circuit court's error in

preemptively     preventing     a    defendant     from    testifying        at    the
responsibility phase of a bifurcated trial.

                                        2
                                                             No.    2010AP1639-CR.ssa


                                        I

      ¶79   Contrary to applying Leach, as it professes to do, the

majority opinion adds and invents new components to the standard

announced in Leach, making it almost impossible for a defendant

to make a sufficient proffer absent expert testimony.

      ¶80   The holding in Leach is clear that lay testimony alone

is sufficient to show mental disease or defect:                       "A favorable

expert opinion is not an indispensable prerequisite to a finding

of mental disease or defect."           Leach, 124 Wis. 2d at 666.

      ¶81   The   majority   opinion        first   properly       states    the   law

that there is no requirement for expert testimony in mental

disease or defect cases, citing State v. Perkins, 2004 WI App

213, 277 Wis. 2d 243, 689 N.W.2d 684:

      [W]here the issue is within the common understanding
      of a jury, as opposed to technical or esoteric, and
      when lay testimony speaks to the mental illness,
      expert testimony, though probative, may not be
      required.
Majority op., ¶43.

      ¶82   Indeed,    Perkins      asserts         that   "requiring         expert

testimony . . . represents         an   extraordinary        step,     one    to   be

taken only when unusually complex or esoteric issues are before

the   jury."      Perkins,   277    Wis. 2d 243,       ¶16     (emphasis      added,

internal quotation marks & quoted source omitted).

      ¶83   The majority opinion turns Leach and Perkins on their

heads, stating that the requirement of expert testimony is the

norm, not the exception:

      [I]n only an exceptional case with extraordinary facts
      may a defendant carry his burden in the responsibility

                                        3
                                                             No.   2010AP1639-CR.ssa

      phase of a criminal trial by relying solely on his own
      testimony.
Majority op., ¶7.

      ¶84    For the proposition that expert testimony is generally

required for the responsibility phase of trial, the majority

opinion offers no citation.             Perkins and Leach stand for the

contrary proposition of law.

      ¶85    The   majority    opinion       asserts    that    instances    where

expert      testimony     is    not     required       are     "exceptional"     or

"extraordinary," but Leach and Perkins recognize that they are

the baseline rule.        No expert testimony is necessary for a jury

to make a determination of mental disease or defect under the

statutes1 or under Leach.

      ¶86    The majority opinion provides no guidance as to when

expert testimony is required or whether it was required in the

instant case to avoid a directed verdict.                I would follow Leach

and   Perkins      and   not   switch    to   the   vague      and   unmanageable

standard the majority opinion fashions.

      1
       Wisconsin   Stat.   § 971.165   governs   procedures  for
defendants who plead not guilty by reason of mental disease or
defect and does not require any medical or expert testimony.

     The jury instruction for mental disease or defect, which
was never given in the instant case, states the difference
between the legal standard and the standard used by medical
professionals for mental disease or defect:

      The term "mental disease or defect" identifies a legal
      standard that may not exactly match the medical terms
      used by mental health professionals.      You are not
      bound by medical labels, definitions, or conclusion as
      to what is or is not a mental disease or defect to
      which the witnesses may have referred.

Wis JI——Criminal 605 at 2.

                                         4
                                                                  No.    2010AP1639-CR.ssa


                                           II

       ¶87    The majority opinion phrases the issue of the directed

verdict granted by the circuit court prior to any testimony as

an issue of "timing."2             Yet denying the right of the defendant to

testify is not an issue of mere "timing."                    Rather, it implicates

the fundamental principle that the defendant should be allowed

to put on evidence, especially his own testimony.3

       ¶88    In    the   instant     case,     the   circuit     court        sua   sponte

directed the verdict in favor of the State "before the defendant

was able to introduce any evidence in the responsibility phase

of the trial . . . ."          Majority op., ¶62 (emphasis added).

       ¶89    The    majority       opinion     justifies        this        exclusion   by

stating that the facts of the instant case "allowed the circuit

court to assess all the defendant's NGI evidence before the

commencement of the responsibility phase . . . ."                            Majority op.,

¶65.       Yet, the circuit court had no way of knowing exactly what

the defendant would have testified to in the second phase of

trial.       When asked what evidence the defendant would put on,
defense      counsel      stated    "the   evidence     I    have       is    my   client's

testimony."         Nevertheless, we do not know what a jury might have

concluded      after      hearing    the   defendant        in   the     responsibility

phase of trial.



       2
           See majority op., ¶62.
       3
       Cf. "A defendant's opportunity to conduct his own defense
by calling witnesses is incomplete if he may not present himself
as a witness."   Rock v. Arkansas, 483 U.S. 44, 52 (1987); Wis.
Const. Art. I, § 7.

                                           5
                                                                    No.    2010AP1639-CR.ssa


      ¶90      The    majority    opinion           even   speaks      out     against   the

anomalous and unfair procedure created by the circuit court's

directed       verdict    in    the   instant          case    prior      to   hearing   any

testimony by either the defendant or the State.                                See majority

op., ¶65.       Nevertheless the majority opinion affirms the circuit

court's procedure and result.

                                               III

      ¶91      I agree with the majority opinion that the circuit

court erred in deciding that the defendant was incompetent to

testify.       Majority op., ¶¶53-54.                 I cannot agree, however, that

the     circuit       court's    directed            verdict    without        hearing   the

defendant's testimony constituted harmless error.                              Indeed, I am

unconvinced       that       harmless-error          analysis     is    the     appropriate

test.

      ¶92      Once a statutory right is implicated, procedural due

process applies, and the defendant is entitled to proper notice

and hearing congruent to the defendant's interest, the state's

interest,       and    the    value   of       the     additional      safeguard.        See
Mathews v. Eldridge, 424 U.S. 319 (1976).

      ¶93      The majority opinion simply assumes that a harmless-

error analysis applies in the instant case after noting that the

circuit court committed several errors.4                       Due process may require

a different test when a defendant is prevented from testifying

outright.        The majority opinion does not consider whether the

error     to    exclude       totally      a        defendant's     testimony       at   the



      4
          Majority op., ¶29.

                                                6
                                                                         No.   2010AP1639-CR.ssa


responsibility phase of trial should be subject to harmless-

error analysis at all.

       ¶94      The issue of whether there was error and whether the

harmless-error analysis applies when a circuit court entirely

excludes a defendant's testimony on the grounds of competency is

before this court in the context of a criminal trial in State v.

Nelson,        2014    WI     ___,     ___    Wis. 2d ___,             ___N.W.2d ___.          The

majority        opinion       in     Nelson    asserts          that    although       error   is

assumed when a criminal defendant is barred from testifying,

such error is reviewed under a harmless-error analysis.5                                    As I

note in my dissent in Nelson,6 such a standard is inappropriate

for evaluating the error in the present case that so strongly

impugns the fairness of the proceeding and whose effect on the

trial cannot be quantified.

                                                IV

       ¶95      I     write    additionally          to    comment        on    the     majority

opinion's place in what appears to be a troubling development in

several        of     this    court's        recent       criminal       cases:       The   court
assumes,        without        deciding,       that        error        occurred      and    then

concludes that the assumed error was harmless.                             See, e.g., State

v. Nelson, 2014 WI 70, ___ Wis. 2d ___, ___N.W.2d ___ (assuming

error in barring the defendant from testifying, but concluding

that       a   harmless       error    test     applies         and     that    the    error   in

excluding the testimony was harmless); State v. Rocha-Mayo, 2014


       5
       State v.              Nelson,    2014     WI       70,    ¶23,     ___     Wis. 2d ___,
___N.W.2d ___.
       6
           Nelson, 2014 WI 70, ¶72 (Abrahamson, C.J., dissenting).

                                                7
                                                                 No.   2010AP1639-CR.ssa


WI   57,    ___    Wis. 2d ___,           ___N.W.2d ___       (assuming       error     in

admitting       evidence       of    a     preliminary     breath      test       and   in

permitting faulty jury instruction, but holding that any error

is   harmless);        State    v.       Deadwiller,     2013    WI    75,    ¶41,      350

Wis. 2d 138,       834       N.W.2d 362        (assuming      error    in     admitting

potential confrontation clause violation but holding that any

violation was harmless).

      ¶96   By repeatedly assuming error and concluding that the

error is harmless, this court fails to determine whether any

systemic problems exist and fails to provide adequate guidance

to   litigants,        the   circuit      courts,   and    the    court      of   appeals

regarding important day-to-day practices and procedures.

      ¶97   For the foregoing reasons, I dissent.

      ¶98   I     am    authorized        to   state   that      Justice     ANN     WALSH

BRADLEY joins this dissent.




                                               8
    No.   2010AP1639-CR.ssa




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