State v. Denson
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After a jury trial, Rickey Denson was found guilty of recklessly endangering safety as a lesser included offense of attempted first-degree intentional homicide and false imprisonment. Denson moved the circuit court for a judgment acquitting him of the charges or, alternatively, an order granting him a new trial on the grounds that the circuit court failed to engage him in an on-the-record colloquy regarding his right not to testify. After conducting an evidentiary hearing, the circuit court denied Denson's postconviction motion, concluding that Denson knowingly, voluntarily, and intelligently waived his right not to testify. The court of appeals affirmed. On review, the Supreme Court affirmed, holding that (1) circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is knowingly, voluntarily, and intelligently waived his right not to testify; (2) once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, an evidentiary hearing is an appropriate remedy to ensure the defendant knowingly, voluntarily, and intelligently waived his right not to testify; and (3) the circuit court properly concluded that Denson knowingly, voluntarily, and intelligently waived his right not to testify.
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2011 WI 70 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP694-CR State of Wisconsin, Plaintiff-Respondent, v. Rickey R. Denson, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 13, 2011 April 14, 2011 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Rock-Janesville Michael J. Byron JUSTICES: CONCURRED: ABRAHAMSON, C. J. concurs (Opinion filed). BRADLEY, J. joins concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the appellant-petitioner there were briefs by Donna Odrzywolski, Wauwatosa, and oral argument by Donna Odrzywolski. For the plaintiff-respondent there was a brief by Maura F.J. Whelen, assistant attorney general with whom on the brief was J.B. Van Hollen, Maura F.J. Whelen. attorney general, and oral argument by 2011 WI 70 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP694-CR (L.C. No. 2002CF2097) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, JUL 13, 2011 v. A. John Voelker Acting Clerk of Supreme Court Rickey R. Denson, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. This is a review of an unpublished order of the court of appeals, State v. Denson, No. 2009AP694-CR, unpublished order (Wis. Ct. App. Oct. 5, 2010), that summarily Court 1 denying affirmed the an order defendant's by the Rock County postconviction Circuit motion for acquittal or, alternatively, a new trial. ¶2 After a trial in which the defendant, Rickey R. Denson (Denson), guilty 1 of testified in his first-degree own defense, recklessly a jury found endangering The Honorable Michael R. Fitzpatrick presided. Denson safety in No. violation of Wis. Stat. § 941.30(1) (2001-02), 2 2009AP694-CR as a lesser included offense of attempted first-degree intentional homicide; and false imprisonment in violation of Wis. Stat. § 940.30. 3 The jury acquitted Denson of the remaining two charges of firstdegree sexual assault § 948.02(1) 4 and contrary Wis. to of negligent Stat. a child handling contrary of a § 941.20(1)(a). 5 to Wis. dangerous The Stat. weapon circuit court entered judgment on the jury verdict. 6 ¶3 Denson moved the circuit court for a judgment acquitting him of the first two charges or, alternatively, an 2 All subsequent references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated. Wisconsin Stat. § 941.30, "Recklessly endangering safety," provides, in relevant part: "(1) First-degree recklessly endangering safety. Whoever recklessly endangers another's safety under circumstances which show utter disregard for human life is guilty of a Class F felony." 3 Wisconsin Stat. § 940.30, "False imprisonment," provides: "Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony." 4 Wisconsin Stat. § 948.02, "Sexual assault of a child," provides, in relevant part: "(1) First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony." 5 Wisconsin Stat. § 941.20, "Endangering safety by use of dangerous weapon," states, in relevant part: "(1) Whoever does any of the following is guilty of a Class A misdemeanor: (a) Endangers another's safety by the negligent operation or handling of a dangerous weapon . . . ." 6 The Honorable Michael J. Byron presided. 2 No. 2009AP694-CR order granting him a new trial on the grounds that the circuit court failed to engage him in an on-the-record regarding his right not to testify. colloquy Relying on this court's decision in State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, Denson argued that a criminal defendant's constitutional right not to testify is a fundamental right that can be waived only by the defendant personally with an on-therecord colloquy. ¶4 The circuit court held an evidentiary hearing at which both Denson and his trial counsel testified. then denied Denson Denson's knowingly, postconviction voluntarily, and motion, The circuit court concluding intelligently waived that his right not to testify. ¶5 Denson appealed, and the court of appeals summarily affirmed. ¶6 We granted Denson's petition for review and now following issues for our affirm. ¶7 This case presents the review: (1) Is a criminal defendant's constitutional right not to testify a fundamental right that can be waived only by the defendant personally with an on-the-record colloquy? (2) Once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, what is an appropriate remedy to ensure 3 No. that the defendant knowingly, 2009AP694-CR voluntarily, and intelligently waived his or her right not to testify? (3) Did Denson knowingly, voluntarily, and intelligently waive his right not to testify? ¶8 A criminal defendant's constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and circuit courts colloquy to intelligently. are not However, we required to conduct whether a defendant determine an conclude that on-the-record is knowingly, voluntarily, and intelligently waiving his or her right not to testify. While we recommend such a colloquy as the better practice, we decline to extend the mandate pronounced in Weed. In any case, postconviction once motion a defendant the issue of properly an raises invalid waiver in of a the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. ¶9 In evidentiary this hearing case, and the circuit properly court concluded conducted that an Denson knowingly, voluntarily, and intelligently waived his right not to testify. I. FACTUAL BACKGROUND ¶10 trial. We derive these facts from the testimony presented at To the extent that the facts are disputed, we so indicate. ¶11 Up until August 2002, Denson had a six-year on again, off again romantic relationship with T.T. 4 For the last year of No. 2009AP694-CR their relationship, the couple resided together in a house in Beloit, Wisconsin. ¶12 On August 6, 2002, at around 6:00 p.m., T.T. returned home from work. As the store manager of a restaurant, it was T.T.'s responsibility to bring the daily deposit to the bank. That evening, T.T. did not bring the deposit to the bank and instead drove directly home to bring dinner to her 11-year-old daughter, A.K.T. A.K.T. and T.T.'s son then spent the night at their respective friends' houses. ¶13 After dinner, Denson and T.T. started arguing over the couple's finances. According to Denson, the argument began because he was angry at T.T. for paying for dinner with money out of the restaurant's deposit. T.T., on the other hand, testified that Denson was angry because T.T. refused to look for her car title. They continued to argue until they eventually fell asleep on the futon in the living room. ¶14 Denson and T.T. awoke around 4:00 a.m. and resumed their argument. diverges. At this point, their testimony significantly For purposes of describing the remaining facts, we first recount T.T.'s testimony, followed by Denson's. ¶15 According to T.T., the argument intensified when Denson threatened to break off the relationship but said that he could not leave because T.T. "was going to call the police on him anyway." Specifically, Denson expressed that he was afraid to leave T.T. "because of what he's done to [T.T.'s] daughter," A.K.T. Denson then informed T.T. that he had pulled A.K.T.'s pants down, performed oral sex on her, and fondled her breasts. 5 No. 2009AP694-CR Denson's account evoked an earlier report given by A.K.T. to T.T. T.T. then told Denson that "it didn't matter, whatever he did, he just needed to go, he needed to get out." ¶16 At that point, T.T. testified, Denson came towards her, and she felt a sharp pain on the left side of her neck. When she reached up to her neck, she "felt something liquidy" and realized she was bleeding. Denson proceeded to push T.T. back onto the futon and smother her face with a pillow. T.T. managed to turn herself around and bite down on Denson's left pinkie finger until he let her go. ¶17 T.T. then recounted how she, feeling lightheaded, went to the kitchen sink to splash cold water on her face. While bent over the sink, she felt what she thought was a frying pan hit the back of her head. Eventually, T.T. noticed a newly broken chair in the kitchen and figured that to be the object she was hit with. ¶18 T.T. described how she thought she was going to die and had begged Denson to leave her alone. would not call the police; she just She told him that she needed help. however, instructed her to go down into the basement. refused, Denson picked her up and carried basement stairs, eventually shoving her down. her Denson, When T.T. over to the T.T. fell down the stairs and struck a brick wall at the bottom. When asked how hard she landed against the brick wall, she responded, "Hard enough that it split my nose open." ¶19 T.T. attempted to climb back up the stairs. When she neared the top, Denson told her "that [she] needed to get back 6 No. down the steps or he was going to kill [her]." 2009AP694-CR T.T. obliged, and Denson left for a few minutes. ¶20 against When Denson returned, he instructed T.T. to stand up a post that was supporting the stairs. T.T. again obliged, and Denson began tying her to the post with phone wire, cords, and torn sheets. After stuffing her mouth with a towel, Denson kissed T.T. on the cheek and told her he loved her. ¶21 Denson went back upstairs and eventually drove off in T.T.'s car. ¶22 T.T managed to untie herself and get back upstairs. While unclear on how long she had been tied up, T.T. testified that by the time she made it upstairs, a clock indicated it was almost 10:00 a.m. neighbor called T.T. went outside and screamed for help. 911, and shortly thereafter, police A officers arrived. ¶23 It is undisputed that T.T. suffered from stab wounds on her neck and shoulder, a laceration on her nose, and multiple bruises across her body. tied her up to the post It is further undisputed that Denson in the basement. However, Denson disputes the events that led up to T.T. being tied up. ¶24 According to Denson, his argument with T.T. at 4:00 a.m. on August 7, 2002, centered on Denson informing T.T. that he had fathered a child with another woman. When Denson told T.T. that he planned to support the baby, T.T. responded by threatening to have Denson put in jail for molesting A.K.T. ¶25 When he Denson testified that their argument turned physical. approached T.T., she "pulled 7 her arm back . . . and No. [Denson] seen [sic] something in there, but exactly what it was, and [he] grabbed it." object, he cut his pinkie finger. wrestled futon. with the object until T.T. [] 2009AP694-CR didn't know When he grabbed the According to Denson, they fell backwards onto the Denson "felt something wet on [him]" and realized that T.T. had been cut. ¶26 and on Denson indicated that T.T. then went into the kitchen her way, fell over an already broken chair. She threatened Denson that "if you leave me, I'm going to say you did all this." Denson told T.T. she should go to the hospital, but T.T. refused, stating, "[D]on't worry about it. It's only a scratch." ¶27 T.T. continued her threats to blame Denson. By his own admission, he then brought her down to the basement and tied her up. When asked on direct examination why he brought T.T. down to the basement, he responded, "Because she had told me that because believe me. I had a criminal record, they ain't going They going to believe her, and I panic." to Denson denied gagging T.T. and reported instead that he gave her a towel to help stop the bleeding. ¶28 Denson conceded that he then drove away in T.T.'s car. Before leaving, however, he told T.T. that "as soon as [he] leave[s] town, [he] was just going to call someone to come and get her." ¶29 On direct examination, Denson testified that he had no intention of killing T.T.: 8 No. 2009AP694-CR Q [Attorney Howard, counsel for Denson]: Did you at any point during this incident tell [T.T.] you intended to kill her? A [Denson]: No, I didn't. Q: Were you intending to? A: No, she——no, she——she attacked me. II. PROCEDURAL POSTURE ¶30 On August 8, 2002, the State charged Denson with attempted first-degree intentional homicide, false imprisonment, first-degree sexual assault of a child, and negligent handling of a dangerous weapon. ¶31 Denson pled not guilty, and the case proceeded to a jury trial on October 26 through October 29, 2004. The over two-year delay was due largely to the fact that Denson went through five attorneys. Denson, through two of Relevant to the issue before us today, his attorneys, including his trial counsel, twice filed motions to sever and conduct a separate trial on the count of first-degree sexual assault of a child. Denson argued that joinder of the sexual assault count with the other three counts would unduly prejudice him because, inter alia, "if he chooses to testify, [Denson] will have to testify to two unrelated sets of facts that are separated in time by a matter of months." ¶32 The circuit court denied both motions. Denson was represented at trial by Attorney Robert C. Howard, III (Attorney Howard). be represented by Attorney Initially, Denson asked not to Howard, appointed only as standby counsel. and Attorney Howard was Denson subsequently filed several pro se motions, including at least three motions for 9 No. dismissal, a speedy trial. motion for bond reduction, and a 2009AP694-CR demand for a Thereafter, Denson changed his mind and opted to have Attorney Howard represent him at trial. ¶33 At trial, the State's key witnesses were T.T. and her daughter, A.K.T. Denson testified in his own defense. The circuit court did not engage Denson in a colloquy regarding his right not to testify. assaulting A.K.T. In his defense, Denson denied sexually and maintained that T.T. was guilty stabbed of only after she attacked him. ¶34 The jury found Denson first-degree recklessly endangering safety, as a lesser included offense of attempted first-degree imprisonment. intentional homicide, and false The jury acquitted Denson of the remaining two charges of first-degree sexual assault of a child and negligent handling of a dangerous weapon. ¶35 verdict. safety, The circuit court entered judgment on the jury On the count of first-degree recklessly endangering the circuit court sentenced Denson to ten years imprisonment, comprised of five years in initial confinement and five years extended supervision. On the count of false imprisonment, the circuit court sentenced Denson to five years imprisonment, concurrent with the first count. 10 No. On December 4, 2008, 7 Denson filed a postconviction ¶36 motion, 2009AP694-CR requesting acquittal or, the circuit alternatively, court grant to him enter a new a judgment trial on of the grounds that the circuit court failed to engage him in an onthe-record colloquy regarding his right not to testify. Relying on this court's decision in Weed, 263 Wis. 2d 434, Denson argued that a criminal defendant's constitutional right not to testify is a fundamental right that can be waived only by the defendant personally with an on-the-record colloquy. The circuit court's failure to engage Denson in such a colloquy, he argued, violated his right to due process of law and privilege against selfincrimination guaranteed by the United States Constitution and the Wisconsin Constitution. ¶37 Guided by the court of appeals' decision in State v. Jaramillo, 2009 WI App 39, 316 Wis. 2d 538, 765 N.W.2d 855, the circuit court concluded that it was not required to engage Denson in an on-the-record colloquy regarding his right not to 7 On August 1, 2006, Denson's then appellate counsel filed a No-Merit Notice of Appeal. The court of appeals conducted an independent review of the record, see Anders v. California, 386 U.S. 738, 744 (1967), and identified a potential issue concerning whether Denson properly waived his right not to testify. See State v. Denson, No. 2006AP1864-CRNM, unpublished order (Wis. Ct. App. July 17, 2008). Thereafter, Denson's current appellate counsel informed the court of appeals that she believes the issue raised by the court has arguable merit and wishes to pursue it. Accordingly, the court of appeals dismissed the no-merit appeal and extended the time for Denson to file a postconviction motion. State v. Denson, No. 2006AP1864-CRNM, unpublished order (Wis. Ct. App. November 3, 2008). 11 No. testify. 2009AP694-CR Since Denson raised the issue, however, the circuit court determined that it was obligated to conduct an evidentiary hearing to determine whether Denson knowingly, voluntarily, and intelligently waived his right not to testify. ¶38 Both Denson evidentiary hearing. Denson answered, discussions testify. with and Attorney Howard testified at the When asked whether he "chose to testify," "Yes." Denson Attorney Howard acknowledged regarding that his he decision had to However, Denson maintained that Attorney Howard never informed him of his right not to testify, never told him that the jury would be instructed not to use his silence against him, and never advised him that the decision was his alone. Rather, according to Denson, their discussions focused on the idea that Denson "had to testify because [he] had no witnesses with [him]." ¶39 On cross-examination, Denson agreed that his defense at trial was that he did not sexually assault A.K.T. and did not intentionally stab T.T. When asked how he thought he would defend the case without testifying, Denson responded, "I have no idea." Finally, Denson denied that Attorney Howard was ever appointed standby counsel. ¶40 Attorney Howard, on the other hand, testified that he met with Denson personally at least six times and that they discussed at length Denson's right to testify and right not to testify. According to Attorney Howard, Denson "strongly urged" him to present a self-defense case. Given the fact that only T.T. and Denson had knowledge of what happened, Attorney Howard 12 No. 2009AP694-CR counseled Denson to testify but still made clear that the choice was Denson's. ¶41 In addition, Attorney specifically discussed with Howard Denson stated the that advantages he and disadvantages of testifying: Q [Attorney Donna Odrzywolski, counsel for Denson]: . . . Did you tell [Denson] that his testimony could be used against him to convict him of, say, for example, false imprisonment? A [Attorney Howard]: Yes. And, in fact, I told him that if he took the stand, the disadvantages of taking the stand in terms of making a decision would be that he would be subject to cross-examination from [the Assistant District Attorney] and that he would be asked, and I talked to him and I discussed with him at some length about thing, [sic] admissions that he would have to make with regard to number of criminal convictions and things like that that would not, that would be used against him and would be something that would be brought out in front of the jury. So yes, I did discuss that. Q: Okay. Ultimately, did you, did you discuss with Mr. Denson the fact that only he could make that decision? A: Yes. ¶42 At the close of the evidentiary hearing, the circuit court concluded that the State met its burden of proving by clear and convincing evidence that Denson knowingly, voluntarily, and intelligently waived his right not to testify. In particular, the circuit court found that Denson knew he had the right not to testify, knew of the consequences of testifying, and knew that he could exercise his right not to testify even if Attorney Howard 13 recommended otherwise. The No. circuit court Attorney based Howard's those findings testimony was on more a 2009AP694-CR determination credible than that Denson's. Specifically, the circuit court noted that Denson's claim of being unaware of his right not to testify was inconsistent with his aggressive demeanor and involvement throughout the case: "The record in this case shows that Mr. Denson, whatever other shortcomings he might have, is not shy about stating his opinions about things, including in court and to professionals." Moreover, the circuit court found that Denson was untruthful regarding Attorney Howard's initial role as standby counsel. In comparison, the circuit court found Attorney Howard's testimony to be believable and consistent with the record. ¶43 The circuit court therefore denied Denson's postconviction motion. ¶44 Denson appealed, and the court of appeals summarily affirmed. Denson, No. 2009AP694-CR, unpublished order (Wis. Ct. App. Oct. 5, 2010). the court required of to Citing Jaramillo, 316 Wis. 2d 538, ¶¶16-18, appeals engage a observed that a circuit criminal defendant in court an is not on-the-record colloquy to ensure that he or she is knowingly, voluntarily, and intelligently waiving the right not to testify. 2009AP694-CR, unpublished order, at 2. nevertheless require an that on-the-record intentional," Wisconsin urge[d] the the court of appeals Supreme Court possesses 14 "To the extent Denson right colloquy Denson, No. not to to ensure concluded the testify its that supervisory should waiver is only the authority No. necessary to procedure. Id. at 2-3. ¶45 argument promulgate rules of criminal 2009AP694-CR practice and In addition, the court of appeals rejected Denson's that inadequate the remedy postconviction for evidentiary determining whether hearing Denson was an knowingly, voluntarily, and intelligently waived his right not to testify: Citing State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, Denson emphasizes our supreme court's acknowledgement that a postconviction motion [sic] may not always be a sufficient remedy for the waiver of a fundamental right. Id., ¶47. Inherent in this acknowledgement, however, is recognition that a subsequent hearing is sometimes an adequate remedy. In the present case, there is nothing to suggest that the postconviction evidentiary hearing was not an adequate remedy. Denson, No. 2009AP694-CR, unpublished order, at 3. ¶46 Denson petitioned granted on December 8, 2010. this court for review, which we We now affirm. III. STANDARD OF REVIEW ¶47 In this case, we must determine whether a criminal defendant's constitutional right not to testify is a fundamental right that can be waived only by the defendant personally with an on-the-record colloquy. That question requires us to apply constitutional principles and is therefore one that we review independently. See Weed, 263 Wis. 2d 434, ¶12; State v. Huebner, 2000 WI 59, ¶16, 235 Wis. 2d 486, 611 N.W.2d 727. ¶48 In addition, whether Denson knowingly, voluntarily, and intelligently waived his right not to testify presents a question of constitutional fact; 15 that is, a question the No. determination of which is decisive of 2009AP694-CR constitutional rights. See Weed, 263 Wis. 2d 434, ¶13; State v. Garcia, 2010 WI App 26, ¶5, 323 Wis. 2d 531, 779 N.W.2d 718. A question of constitutional fact presents a mixed question of fact and law and is reviewed Robinson, 2010 using WI a 80, two-step ¶22, 327 process. See Wis. 2d 302, 786 State v. N.W.2d 463; Weed, 263 Wis. 2d 434, ¶13; Garcia, 323 Wis. 2d 531, ¶5; State v. Arredondo, N.W.2d 647. historical 2004 WI App 7, fact see 269 Wis. 2d 369, 674 "First, we review the circuit court's findings of under a deferential unless they are clearly erroneous." ¶22; ¶12, also Weed, 263 standard, upholding them Robinson, 327 Wis. 2d 302, Wis. 2d 434, ¶13. "Second, we independently apply constitutional principles to those facts." Robinson, 327 Wis. 2d 302, ¶22. IV. ANALYSIS A. A criminal defendant's constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and intelligently. ¶49 "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." 401 U.S. 222, 225 (1971). A criminal Harris v. New York, defendant's corollary rights to testify and not to testify are guaranteed by both the United States Constitution and the Wisconsin Constitution. ¶50 United In Rock v. Arkansas, 483 U.S. 44, 53 n.10 (1987), the States Supreme Court made explicit that a criminal defendant's right to testify on his or her own behalf is a fundamental constitutional right. 16 The right is rooted in No. 2009AP694-CR several provisions of the federal constitution, including the Fourteenth Amendment's guarantee of due process of law, 8 id. at 51, and the Sixth Amendment's right to "compulsory process for obtaining witnesses in [the defendant's] favor," 9 id. at 52. As the Supreme Court explained, logically included in a criminal defendant's right to be heard and right to call witnesses is a right to present one's own testimony. ¶51 Likewise, Article I, See id. at 51-52. Section 7 of the Wisconsin Constitution expressly guarantees criminal defendants "the right to be heard by himself" and the right "to have compulsory process to compel the attendance of witnesses in his behalf." Consistent with the Supreme Court's pronouncement in Rock, this court has "affirm[ed] that a criminal defendant's constitutional right to testify on his or her behalf is a fundamental right." Weed, 263 Wis. 2d 434, ¶39. ¶52 In addition, the Supreme Court has recognized that a criminal defendant's right to testify is "a necessary corollary to the Fifth Amendment's guarantee against compelled testimony." 8 Section 1 of the Fourteenth Amendment provides, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. 9 The Sixth Amendment grants a criminal defendant the right, inter alia, "to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. The Sixth Amendment is made applicable to the States through the Fourteenth Amendment. Rock v. Arkansas, 483 U.S. 44, 52 (1987) (citing Washington v. Texas, 388 U.S. 14, 17-19 (1967)); see also State v. Imani, 2010 WI 66, ¶20 n.8, 326 Wis. 2d 179, 786 N.W.2d 40. 17 No. Rock, 483 U.S. at 52. 2009AP694-CR The Fifth Amendment protects against self-incrimination, providing that no person "shall be compelled in any criminal case to be a witness against himself." Const. V. 10 amend. The Supreme Court has described U.S. the relationship between the right to testify and the right not to testify as follows: self-incrimination "The is Fifth Amendment's fulfilled only privilege when an against accused is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will. The choice of whether to testify in one's own defense is an exercise of the constitutional privilege." Rock, 483 U.S. at 53 (internal quotations omitted). ¶53 A criminal defendant's right not to testify is regarded as so significant that the Fifth Amendment "further guarantees that no adverse inferences are to be drawn from the exercise of that privilege," Carter v. Kentucky, 450 U.S. 288, 305 (1981), and "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt," Griffin v. California, 380 U.S. 609, 615 (1965). ¶54 Article I, Section 8 of the Wisconsin Constitution is the state counterpart to the Fifth Amendment and provides, in relevant part, that no person "may be compelled in any criminal case to be a witness against himself or herself." 10 See also The Fifth Amendment's privilege against selfincrimination is made applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964). 18 No. 2009AP694-CR State v. Jennings, 2002 WI 44, ¶40 & n.8, 252 Wis. 2d 228, 647 N.W.2d 142. ¶55 In Jaramillo, the court of appeals reasoned that because the right to testify is a fundamental right, it follows that "the constitutionally articulated corollary to the right to testify——the right not to testify——is fundamental as well." 316 Wis. 2d 538, 263 ¶10 Wis. 2d 434, (citing ¶39). Rock, We 483 agree. U.S. at 51-53; Accordingly, Weed, a criminal defendant's constitutional right not to testify is a fundamental right. ¶56 Because the right not to testify is a fundamental right, we must "'indulge every reasonable presumption against [its] waiver.'" Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937)); see also Hodges v. Easton, 106 U.S. 408, 412 (1882). of a fundamental right is "ordinarily an A waiver intentional relinquishment or abandonment of a known right or privilege." Johnson, 304 U.S. at 464; see also Wis. 2d 246, 265, 389 N.W.2d 12 (1986). State v. Bangert, 131 Accordingly, a criminal defendant must knowingly, voluntarily, and intelligently waive his or her right not to testify. ¶57 right not In the to case testify now can before be us, waived Denson only personally with an on-the-record colloquy. argues by the that the defendant Denson's argument is premised upon our decision in Weed, in which we held that "the constitutional right of a criminal defendant to testify on his or her own behalf is a fundamental right; therefore, waiver of 19 No. 2009AP694-CR the right to testify requires that a circuit court conduct an on-the-record colloquy." 263 Wis. 2d 434, ¶48. According to Denson, it is only logical that we extend the holding in Weed to include the corollary right not to testify. ¶58 We do not view the analysis so simply. While we recommend an on-the-record colloquy as the better practice, we decline to extend Weed to include the right not to testify. B. Circuit courts are not required to conduct an on-therecord colloquy to determine whether a defendant is knowingly, voluntarily, and intelligently waiving his or her right not to testify. ¶59 In Weed, this court imposed upon circuit courts an affirmative duty to conduct an on-the-record colloquy to ensure that a criminal intelligently defendant waiving Wis. 2d 434, ¶40. his is or knowingly, her right voluntarily, and testify. 263 to In that case, after a trial in which the defendant did not testify, a jury found her guilty of firstdegree intentional homicide. Id., ¶¶5-6. At trial, the circuit court did not conduct a colloquy with the defendant to ensure that she was knowingly, voluntarily, and intelligently waiving her right to testify. Id., ¶6. The defendant filed a postconviction motion for a new trial, arguing, inter alia, that she did behalf. not validly Id., ¶7. waive her right to testify on her own The circuit court held an evidentiary hearing at which both the defendant and her trial counsel testified. Id. Based upon "'the post-trial testimony of defendant's counsel, other choices made by the defendant during trial, and the court's interaction with the defendant during the course of 20 No. the trial,'" the circuit court concluded that 2009AP694-CR the defendant knowingly, voluntarily, and intelligently waived her right to testify. Id. ¶60 Id., ¶8. Upon review, this court affirmed, though on different grounds. testify The court of appeals affirmed. We is concluded a that fundamental a criminal right and defendant's that circuit right courts to are required to conduct an on-the-record colloquy to ensure that the defendant is knowingly, voluntarily, and intelligently waiving his or her right to testify. Id., ¶40. We arrived at our conclusion by considering other cases in which we have held that a circuit court must conduct a colloquy with the defendant, including when a defendant waives his or her right to counsel, see State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), and when a defendant waives his or her right to a jury trial, see State N.W.2d 301. v. Anderson, 2002 WI 7, Weed, 263 Wis. 2d 434, ¶39. 249 Wis. 2d 586, 638 We explained that the decision to waive such rights is "so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458 (1938). That is, the waiver must be an intentional relinquishment or abandonment of a known right or privilege." Weed, 263 Wis. 2d 434, ¶40 (internal quotations omitted). determined that "[t]his same rationale applies to We the fundamental right of a criminal defendant to testify on his or her behalf." ¶61 Id. Accordingly, we held that in order to ensure that a defendant is knowingly, voluntarily, and intelligently waiving 21 No. 2009AP694-CR his or her right to testify, circuit courts should conduct an on-the-record colloquy with the defendant, outside the jury's presence, and inquire whether the defendant (1) is aware of his or her right to testify and (2) has discussed this right with his or her counsel. ¶62 court In did Weed, not concluded Id., ¶43. notwithstanding conduct that the a the colloquy defendant fact with that the knowingly, the circuit defendant, voluntarily, we and intelligently waived her right to testify based upon our review of the record and the evidence presented at the postconviction evidentiary hearing. Id., ¶44. Still, we reserved for another day the issue of whether a postconviction evidentiary hearing would always be sufficient to ensure that a criminal defendant validly waived his or her right to testify. Id., ¶47 ("Since Weed was provided an adequate remedy from the post-conviction hearing and the parties did not fully brief the issue of remedy, we do not decide the appropriate remedy if a circuit court fails to conduct an on-the-record colloquy with a criminal defendant to ensure that the defendant is waiving his or her right to testify."). ¶63 Turning to the central issue before us today, we decline to extend Weed to include the corollary to the right to testify——the right not to testify. circuit courts colloquy to are not determine That is, we conclude that required to conduct whether a defendant an on-the-record is knowingly, voluntarily, and intelligently waiving his or her right not to testify. 22 No. ¶64 As the Weed court recognized, we are 2009AP694-CR in the small minority of jurisdictions that impose an affirmative duty upon circuit courts to conduct an on-the-record colloquy to ensure that a criminal voluntarily defendant waiving Wis. 2d 434, ¶41. impose such a duty his is or knowingly, her right intelligently, and testify. 11 263 to The vast majority of jurisdictions do not upon circuit jurisdictions advise against it. courts, 12 and in fact, many See, e.g., United States v. Webber, 208 F.3d 545, 552 (6th Cir. 2000); United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989); Illinois v. Shelton, 624 N.E.2d 1205, 1211 (Ill. App. Ct. 1993); Taylor v. Kansas, 843 P.2d 682, 688 (Kan. 1992); Massachusetts v. Waters, 11 Other jurisdictions that mandate a Weed-type colloquy include Alaska, see Mute v. Alaska, 954 P.2d 1384, 1386-87 (Alaska Ct. App. 1998); Colorado, see Colorado v. Curtis, 681 P.2d 504, 514-15 (Colo. 1984); Hawaii, see Tachibana v. Hawai'i, 900 P.2d 1293, 1303 (Haw. 1995); South Carolina, see South Carolina v. Davis, 422 S.E.2d 133, 145 (S.C. 1992), overruled on other grounds by Brightman v. South Carolina, 520 S.E.2d 614, 616 n.5 (S.C. 1999); Tennessee, see Momon v. Tennessee, 18 S.W.3d 152, 162 (Tenn. 1999), reh'g granted, 18 S.W.3d 152, 175 (Tenn. 2000) (concluding that a criminal defendant may waive the right to testify by signing a written waiver or by engaging in the voir dire procedure set out in the initial decision); and West Virginia, see West Virginia v. Neuman, 371 S.E.2d 77, 81-82 (W. Va. 1988). 12 For a comprehensive list of jurisdictions that do not require circuit courts to conduct an on-the-record colloquy to ensure that a criminal defendant is knowingly, intelligently, and voluntarily waiving his or her right to testify, see Johnson v. Texas, 169 S.W.3d 223, 232 n.50 (Tex. Crim. App. 2005). See also Michele C. Kaminski, Annotation, Requirement that Court Advise Accused of, and Make Inquiry with Respect to, Waiver of Right to Testify, 72 A.L.R.5th 403 (1999). 23 No. 506 N.E.2d 859, 865 (Mass. 1987). Their mandating an on-the-record colloquy are many. F.2d at 760. 2009AP694-CR reasons for not See Martinez, 883 The most notable include that by advising the defendant of his or her right to testify, the circuit court might inadvertently influence the defendant to waive his or her right not to testify, might improperly intrude upon the attorney-client relationship or interfere with defense strategy, or might lead the defendant into believing defense counsel is somehow deficient. that his or her See Webber, 208 F.3d at 551-52; United States v. Ortiz, 82 F.3d 1066, 1069-70 (D.C. Cir. 1996); Martinez, 883 F.2d at 760. ¶65 We believe that these risks apply with even greater force to a circuit court's inquiry into a criminal defendant's decision to testify. responsibility for corollary rights explaining the objectively, Defense advising to testify tactical the and defendant's has defendant not implications likelihood of conviction." (Colo. 1986). the counsel to of testimony the primary of his or her and for testify both. may "[V]iewed increase the Colorado v. Mozee, 723 P.2d 117, 125 In that sense, we believe it "unlikely that a competent defense counsel would allow a defendant to take the stand without a full explanation of the right to remain silent and the possible consequences of waiving that right." a defendant, counseled by his or her attorney, Id. makes Once the decision to testify, a circuit court's inquiry into whether the defendant is aware of his or her corollary right not to testify runs a real risk of interfering 24 with defense strategy and No. inadvertently suggesting to the defendant disapproves of his or her decision to testify. 2009AP694-CR that the court For well over a century, the Supreme Court has made clear that circuit courts ought not to comment on a criminal defendant's decision to testify, lest the value of the right be diminished: [I]t must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge . . . should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. Allison v. United States, 160 U.S. 203, 207 (1895). We believe that same principle holds true today. ¶66 263 Therefore, different from our conclusion in Weed, see Wis. 2d 434, ¶¶41-42, we conclude that the risk that a circuit court's inquiry into a criminal defendant's decision to testify will influence the defendant to waive his or her right to testify or will improperly interfere with defense strategy outweighs the benefit of mandating an on-the-record colloquy to ensure that the defendant is knowingly, voluntarily, and intelligently waiving his or her right not to testify. ¶67 At the same time, as a practical matter, we recognize that conducting an on-the-record colloquy "is the clearest and most efficient means" of ensuring that the defendant has validly waived his or her right not to testify "and of preserving and documenting that valid postconviction motions." waiver for purposes of appeal and See Klessig, 211 Wis. 2d at 206; see 25 No. also Anderson, 249 Wis. 2d 586, ¶23. 2009AP694-CR Here, for instance, we are mindful of the fact that had the circuit court engaged Denson in an on-the-record colloquy regarding his right not to testify, this case likely would not be before us. Accordingly, recommend an on-the-record colloquy as the better practice. we In fact, the Special Materials prepared by the Wisconsin Criminal Jury Instructions Committee already direct circuit courts to inquire into a criminal defendant's understanding of both the right to testify and the right not to testify. See Wis JI—— Criminal SM-28. C. A postconviction evidentiary hearing is an appropriate remedy to ensure that a defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. ¶68 In any case, whether or not the circuit court conducts an on-the-record colloquy, it remains that a criminal defendant must knowingly, voluntarily, and intelligently waive his or her right not to testify. It follows that a defendant may raise in a postconviction motion the issue of an invalid waiver of the right not to testify. Once a defendant properly raises the issue, we determine that a postconviction evidentiary hearing is an appropriate remedy to ensure that a defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. This is the same remedy that we adopted to address a criminal defendant's claim that he or she did not validly waive the right to counsel, see Klessig, 211 Wis. 2d at 206-07, or did not validly enter a guilty plea, see Bangert, 131 Wis. 2d at 274-75. 26 No. ¶69 2009AP694-CR Relying on our decision in State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991), Denson urges us to adopt automatic reversal and a new trial as the appropriate remedy for when a circuit court does not conduct a colloquy with the defendant or when there is otherwise no evidence in the record that the defendant took a personal affirmative step to waive his or her right not to testify. 13 ¶25. See Anderson, 249 Wis. 2d 586, However, as we explained in Livingston, the remedy of a new trial for a defendant who did not, on the record, personally and affirmatively waive his or her right to a jury trial is consistent with an express statutory mandate. 573. 159 Wis. 2d at Specifically, Wis. Stat. § 972.02(1) provides, in relevant part, that "criminal cases shall be tried by a jury . . . unless the defendant waives a jury in writing or by statement in open 13 Denson also argues that a circuit court's complete failure to engage a criminal defendant in an on-the-record colloquy regarding his or her right not to testify should not be subject to harmless error analysis. However, the harmless error rule has no application to this case. The harmless error rule prohibits reversal for errors, even constitutional ones, not affecting a party's substantial rights. See State v. Harvey, 2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189 (citing Wis. Stat. §§ 805.18, 972.11(1)). As a preliminary matter, we have concluded that a circuit court does not err by failing to engage a criminal defendant in an on-the-record colloquy regarding his or her right not to testify. More to the point, however, the State does not argue, and we do not adopt, the position that a circuit court's failure to conduct such a colloquy is harmless. Rather, we conclude that whether or not a circuit court conducts an on-the-record colloquy, once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, the circuit court must conduct an evidentiary hearing to determine whether the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. 27 No. 2009AP694-CR court . . . , on the record, with the approval of the court and the consent of the state." pursuant to § 972.02(1), (Emphasis added.) when a criminal In other words, defendant does not validly waive his or her right to a jury trial, "there must be a trial by jury." Livingston, 159 Wis. 2d at 573. On the other hand, when there is no statute that provides for a specific remedy for an invalid waiver of a fundamental right, as is the case with the right to testify and the right not to testify, it may be that "the ends of justice . . . can be served by allowing the defendant a postconviction hearing, [and] a new trial would be inappropriate." ¶70 Id. at 572. Accordingly, consistent with the remedy adopted in Klessig and Bangert, we conclude that once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, the circuit court must conduct an evidentiary hearing to knowingly, voluntarily, right to not testify. determine and The whether intelligently initial the waived burden defendant his rests or her with the defendant to make a prima facie showing that he or she did not know or understand that he or she had the right not to testify. See Bangert, 131 Wis. 2d at 274. The burden then shifts to the State to demonstrate by clear and convincing evidence that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. 207. See id.; Klessig, 211 Wis. 2d at In essence, the State will be required to demonstrate that the defendant knew he or she had the right not to testify, understood the consequences of waiving the right not to testify, 28 No. 2009AP694-CR and understood that the decision whether to testify was for him or her to make. entire record defendant's To so demonstrate, the State may utilize the and trial may examine counsel at both the the defendant evidentiary and hearing. the See Bangert, 131 Wis. 2d at 275 ("[P]ermitting the state to show by clear and convincing evidence that the totality of the circumstances demonstrates a knowing and voluntary plea in fact achieves the requirement of the constitutional standard."). If the State is able to satisfy its burden, then the conviction will stand. the State evidence Klessig, 211 Wis. 2d at 207. is unable that the to demonstrate defendant by On the other hand, if clear knowingly, and convincing voluntarily, and intelligently waived his or her right not to testify, then the defendant is entitled to a new trial. See id. D. Denson knowingly, voluntarily, and intelligently waived his right not to testify. ¶71 In this case, the circuit court conducted a postconviction evidentiary hearing and concluded that the State met its burden of demonstrating by clear and convincing evidence that Denson knowingly, voluntarily, and intelligently waived his right not to testify. ¶72 We agree. At the close of the evidentiary hearing, the circuit court made several findings of historical fact. The circuit court found that Attorney Howard had consulted with Denson at least six times and that they had discussed at length Denson's corollary rights to testify and not to testify. The circuit court discussions further found that the 29 subject of those No. 2009AP694-CR included the advantages and disadvantages of testifying and the fact that Denson did not have Howard recommended otherwise. to testify, even if Attorney In addition, the circuit court denied that Denson was a naïve criminal defendant and in fact found Denson to be vocal and aggressive, especially concerning his opinions on counsel and defense strategy. Finally, the circuit court found that Denson wanted to defend his case by claiming self-defense and had lied when he alleged that Attorney Howard was never standby counsel. ¶73 are All of these findings are supported by the record and therefore not clearly erroneous. At the evidentiary hearing, Attorney Howard testified that he and Denson discussed at length Denson's right to testify and right not to testify and their respective advantages and disadvantages. also testified whether or repeatedly that not to he informed testify remarked on was that Denson's. Attorney accepted his testimony as true. Denson Attorney Howard the The Howard's choice circuit of court credibility and "Because matters of credibility are solely within the province of the trial court," Bryn v. Thompson, 21 Wis. 2d 24, 31, 123 N.W.2d 505 (1963), we will not disturb the circuit court's finding. ¶74 The circuit court's finding that Denson was an experienced and vocal criminal defendant is also well supported by the record. Denson had 15 prior criminal convictions. Attorney Howard was his fifth attorney in this case alone, and Denson initially wanted Attorney Howard to serve as only standby counsel. Denson filed several pro se motions which, relatively 30 No. speaking, were thorough and well-argued. In 2009AP694-CR addition, the hearing and trial transcripts before us demonstrate that Denson was not hesitant to interrupt and speak to the circuit court directly. ¶75 Finally, at the evidentiary hearing, Denson himself testified that his strategy at trial was to show that he did not intentionally stab T.T. ¶76 Applying these facts to the relevant constitutional standard, we conclude that Denson knowingly, voluntarily, and intelligently waived his right not to testify. In particular, it is clear from Attorney Howard's testimony that Denson knew he had the right not to testify and understood that the choice of whether to testify was his to make. Indeed, when Denson himself was asked whether he "chose to testify," he answered, "Yes." Denson's knowledge and understanding of his right not to testify is further supported by the fact that he, through two of his attorneys, twice filed motions to sever and conduct a separate trial on the count of first-degree sexual assault, reasoning that joinder would unduly prejudice him "if he chooses to testify" to the two unrelated acts. ¶77 It is also clear from Attorney Howard's testimony that Denson understood the consequences of waiving his right not to testify. Specifically, Attorney Howard testified that he informed Denson that the State had the burden of proof such that Denson was not required to testify and that if Denson did take the stand, Denson would be subject to cross-examination would have to admit to the number of his criminal convictions. 31 and No. ¶78 Finally, given the fact that Denson 2009AP694-CR aggressively asserted himself throughout the proceedings and pushed for a case of self-defense, we find it highly unlikely that Denson blindly chose to testify. ¶79 For the foregoing reasons, we conclude that Denson knowingly, voluntarily, and intelligently waived his right not to testify. V. CONCLUSION ¶80 A criminal defendant's constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and circuit courts colloquy to intelligently. are not However, we required to conduct whether a defendant determine an conclude that on-the-record is knowingly, voluntarily, and intelligently waiving his or her right not to testify. While we recommend such a colloquy as the better practice, we decline to extend the mandate pronounced in Weed. In any case, postconviction once motion a the defendant issue of properly an invalid raises waiver in of a the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify. ¶81 In evidentiary this case, hearing and the circuit properly court concluded conducted that an Denson knowingly, voluntarily, and intelligently waived his right not to testify. By the Court.—The decision affirmed. 32 of the court of appeals is No. ¶82 SHIRLEY S. ABRAHAMSON, C.J. 2009AP694-CR.ssa (concurring). I agree with the majority's determination that an evidentiary hearing is the appropriate demonstrates remedy that when the the defendant's defendant did motion not properly knowingly, intelligently, and voluntarily waive the right not to testify. I join the majority in affirming the circuit court's conclusion that the defendant in the present case knowingly, intelligently, and voluntarily waived his right not to testify. ¶83 I part company with the majority on the question whether an on-the-record colloquy with the defendant should be merely recommended as good practice or required. adopts the former position; The majority I would adopt the latter. 1 1 The court of appeals apparently agrees with my position. It stated: We have previously noted that we do "not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure." . . . Rather, "Wisconsin's constitution and statutes limit such a law-developing or lawdeclaring function exclusively to the Wisconsin Supreme Court." Our constitution gives the supreme court supervisory authority over all of the courts of this state, but delegates such authority to the court of appeals only over "the courts in the district." A mandate that all courts in Wisconsin must conduct a colloquy to ensure a defendant knowingly and voluntarily waives the right not to testify must therefore come from the supreme court. Although we cannot require a colloquy, we do recommend it as good practice. State v. Jaramillo, 2009 WI App 39, ¶¶16-17, 316 Wis. 2d 538, 765 N.W.2d 855 (citations omitted). 1 No. ¶84 The right to fundamental right. 2 testify on invoked exclusive or (but own behalf is a Likewise, the right not to testify is a fundamental constitutional right. 3 be one's 2009AP694-CR.ssa waived. 4 Neither right is presumed to Exercising complementary) either fundamental of the rights mutually necessarily requires the waiver of the other equally fundamental right. ¶85 mandated I conclude that an on-the-record colloquy should be because, Klessig, 211 as the court Wis. 2d 194, precisely 206, stated 564 in State N.W.2d 716 v. (1997): "Conducting such an examination of the defendant is the clearest and most efficient means of insuring that the defendant has validly waived his right . . . and of preserving and documenting that valid motions. waiver for purposes of appeal and postconviction Thus a properly conducted colloquy serves the dual purposes of ensuring that a defendant is not deprived of his constitutional judicial rights resources. and We of hope efficiently that our guarding our reaffirmation scarce of the importance of such a colloquy will encourage the circuit courts to continue their vigilance in employing such examinations." 2 State v. Weed, 2003 WI 85, ¶37, 263 Wis. 2d 434, 666 N.W.2d 485 (quoting Rock v. Arkansas, 483 U.S. 44, 53 n.10 (1987)). 3 U.S. Const. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself . . . ."); Wis. Const. art. 1, § 8 ("No person . . . may be compelled in any criminal case to be a witness against himself or herself."). 4 Courts indulge every reasonable presumption against waiver of constitutional rights and "do not presume acquiescence in the loss of fundamental rights." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 2 No. ¶86 2009AP694-CR.ssa For waiver of the right to testify, this court has already balanced the benefits and risks of a mandatory colloquy in favor of requiring an on-the-record colloquy. 5 Nothing supports the majority's arriving at a different balance in the present case when addressing a defendant's waiver of the right not to testify. ¶87 The supports Wisconsin mandating a Criminal colloquy, Jury Instructions explaining "that Committee a similar inquiry [to the one made when a defendant seeks to waive the right to testify] should be conducted when the defendant decides to testify, because a constitutional right is involved Instructions Committee regardless of the decision that is made." 6 ¶88 The Wisconsin Criminal Jury supports approaching the waiver of both the right to testify and the right not to testify in a consistent manner. Special Material 28 (SM-28) provides a series of suggested inquiries that a court should engage in with a defendant and defense counsel to ensure a waiver of the right to testify or the right not to testify is knowing, intelligent, and voluntary. 7 5 The State v. Weed, 263 Wis. 2d 434, at ¶41. 6 3 Wis JI——Criminal, SM-28: Inquiry Regarding the Decision Whether to Testify, Comment at 2. 7 Wis JI——Criminal SM-28 is entitled "INQUIRY REGARDING THE DECISIONS WHETHER TO TESTIFY," and provides: THE FOLLOWING IS INTENDED FOR USE WHEN THE DEFENDANT HAS DECIDED TO TESTIFY AND WHEN THE DEFENDANT SEEKS TO WAVIE THE RIGHT TO TESTIFY DIRECT THE FOLLOWING QUESTIONS TO THE DEFENDANT: 3 No. questions provided are merely suggestions. replies indicate questions or a possible allowing lack of additional 2009AP694-CR.ssa "If the defendant's understanding, consultation follow-up between the defendant and defense counsel may be advisable." 8 ¶89 Requiring a colloquy to waive both fundamental, complementary constitutional rights makes sense: it creates a consistent approach and should not present a challenge to the circuit courts. "Do you understand right to testify?" that you have a constitutional "And do you understand that you have a constitutional right not to testify?" "Do you understand that the testify is for you to make?" decision whether to "Has anyone made any threats or promises to you to influence your decision?" "Have you discussed your decision whether or not to testify with your lawyer?" "Have you made a decision?" "What is that decision?" DIRECT THE FOLLOWING QUESTION TO DEFENSE COUNSEL: "Have you had sufficient opportunity to thoroughly discuss this case and the decision whether to testify with the defendant?" "Are you satisfied that the defendant is making the decision knowingly, intelligently, and voluntarily?" THE COURT SHOULD STATE THE APPROPRIATE FINDING ON THE RECORD 8 3 Wis JI——Criminal, SM-28: Inquiry Regarding the Decision Whether to Testify, Comment at 2. 4 No. ¶90 The majority's approach 2009AP694-CR.ssa creates inconsistent requirements for the circuit court in dealing with the waiver of these complementary fundamental constitutional rights. process, the majority provides an inconsistent In the analysis, ultimately providing a confusing directive. ¶91 In one breath, the majority portends the danger of influence and encroachment into the attorney-client relationship when a circuit court engages in an regarding the right not to testify. on-the-record colloquy Majority op., ¶66. In the next breath, the majority advises that conducting a colloquy "is the clearest and most efficient means" of ensuring that a defendant has validly waived the right not to testify, and so recommends it. ¶92 ensures As a Majority op., ¶67. I see it, defendant is requiring not an on-the-record deprived of a colloquy fundamental constitutional right and limits the need for a retrospective evidentiary hearing. ¶93 trial Because and constitutional appellate judicial rights and efficiency the are interests advanced by of a consistent and clear bright-line rule, I would mandate an onthe-record colloquy regarding a defendant's waiver of the right not to testify. ¶94 For the foregoing reasons, I concur. ¶95 I am authorized to state BRADLEY joins this opinion. 5 that Justice ANN WALSH
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