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 App. 2012 – Unpublished)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here an unpublished decision of the court of appeals1 affirming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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