State v. Lagrone

• Decision Date: 22 April 2016
• Docket Number: No. 2013AP1424–CR.,2013AP1424–CR.
• Citation: 368 Wis.2d 1,878 N.W.2d 636,2016 WI 26
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. James Elvin LAGRONE, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

368 Wis.2d 1

878 N.W.2d 636

2016 WI 26

STATE of Wisconsin, Plaintiff–Respondent,

v.James Elvin LAGRONE, Defendant–Appellant–Petitioner.

No. 2013AP1424–CR.

Supreme Court of Wisconsin.

Argued Jan. 25, 2016.

Decided April 22, 2016.

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

For the plaintiff-respondent, the cause was argued by Katherine D. Lloyd, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Lagrone, No. 2013AP1424–CR, unpublished slip op., 2015 WL 1525995 (Wis.Ct.App. Apr. 7, 2015), which affirmed the Milwaukee County circuit court's judgment of conviction and order denying defendant James Elvin Lagrone's ("Lagrone") postconviction motion for an evidentiary hearing and a new trial on the question of Lagrone's mental responsibility.¹

¶ 2 Criminal defendants possess a fundamental constitutional right to testify in their own defense. See, e.g., State v. Anthony, 2015 WI 20, ¶¶ 46, 48, 361 Wis.2d 116, 860 N.W.2d 10(citing Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)). Further, this court has stated that a circuit court "should conduct an on-the-record colloquy to ensure that the defendant is knowingly, intelligently, and voluntarily waiving his or her right to testify." State v. Weed, 2003 WI 85, ¶ 2, 263 Wis.2d 434, 666 N.W.2d 485.

¶ 3 The question before this court is whether, upon a plea of not guilty by reason of mental disease or defect ("NGI") under Wis. Stat. § 971.15(2013–14),² such right-to-testify colloquies are also required at the responsibility phase of the resulting bifurcated trial established by Wis. Stat. § 971.165. See generally State v. Magett, 2014 WI 67, ¶¶ 33–40, 355 Wis.2d 617, 850 N.W.2d 42(discussing nature and history of bifurcated trials resulting from NGI pleas).

¶ 4 Lagrone does not challenge the plea colloquy that occurred during the guilt phase of his bifurcated NGI proceedings. He does not argue that he was unaware that, by pleading guilty to the criminal charges against him, he was waiving his fundamental right to testify at a criminal trial pertaining to the validity of those charges. Instead, we must analyze Lagrone's opportunity to testify at the responsibility phase of his bifurcated trial. The circuit court below did not conduct a right-to-testify colloquy with Lagrone during the responsibility phase of his bifurcated trial, and Lagrone argues that because he did not understand that he had a right to testify at that phase, he is entitled to an evidentiary hearing under State v. Garcia, 2010 WI App 26, 323 Wis.2d 531, 779 N.W.2d 718, so that a court may determine whether he properly waived his right to testify. Ultimately, determining whether a colloquy is necessary during the responsibility phase of NGI proceedings requires us to determine whether the fundamental right to testify applies at that phase. The court of appeals below decided that resolution of this "issue of first impression" was unnecessary because, it reasoned, the harmless error doctrine applied and any error by the circuit court was harmless. See State v. Lagrone, No. 2013AP1424–CR, unpublished slip op., ¶¶ 13, 17, 19, 2015 WL 1525995 (Wis.Ct.App. Apr. 7, 2015).

¶ 5 We conclude that, although a better practice, a circuit court is not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect.³ Further, Lagrone is not entitled to an evidentiary hearing because he has not made the requisite showing for such a hearing. Accordingly, we affirm the decision of the court of appeals.

I. FACTUAL BACKGROUND

¶ 6 On April 30, 2011, at about 10:00 p.m., Lagrone arrived at the Milwaukee home of his ex-girlfriend, B.M.J.⁴ Lagrone wanted to enter B.M.J.'s home, but she refused to let him in. Lagrone nevertheless forced his way into the home and then "proceeded to 'humiliate' " B.M.J., abusing her both physically and sexually, until about 1:00 p.m. the following day. This violent episode ceased only when an apparent acquaintance of B.M.J. arrived at the home to check on her because she was not answering his phone calls. The acquaintance observed that the door to the home was wide open and heard screaming. He entered the home and saw B.M.J. lying on the floor; Lagrone was on top of her with his hands around her neck. The acquaintance called 911 and Lagrone fled in B.M.J.'s car. Lagrone turned himself in later that day.

II. PROCEDURAL BACKGROUND

¶ 7 On May 5, 2011, a criminal complaint was filed against Lagrone charging him with: (1) strangulation and suffocation, contrary to Wis. Stat. § 940.235(1)(2011–12); (2) false imprisonment, contrary to Wis. Stat. § 940.30(2011–12); (3) second-degree sexual assault (force or violence), contrary to Wis. Stat. § 940.225(2)(a)(2011–12); (4) recklessly endangering safety (first degree), contrary to Wis. Stat. § 941.30(1)(2011–12); and (5) operating a motor vehicle without owner's consent, contrary to Wis. Stat. § 943.23(3)(2011–12). Each count carried the domestic abuse modifier. See Wis. Stat. § 968.075(1)(a)(2011–12).

¶ 8 On May 13, 2011, Lagrone's attorney informed the Milwaukee County circuit court⁵ that she had reason to doubt Lagrone's competency. The attorney asked the court to order a competency evaluation of Lagrone. The court granted the request. On May 25, 2011, Dr. Robert Rawski filed a report in which he provided his belief to a reasonable degree of medical certainty that Lagrone suffered from paranoid schizophreniabut was currently competent to stand trial.

¶ 9 On June 9, 2011, a preliminary hearing was held and Lagrone pleaded not guilty and NGI. On June 21, 2011, the court⁶ ordered that Lagrone be examined for purposes of his NGI plea. On July 22, 2011, Dr. John Pankiewicz filed a report which stated his belief to a reasonable degree of medical certainty that Lagrone was suffering from schizophreniaon the date of his offense. However, the report also stated that Dr. Pankiewicz could not support Lagrone's NGI plea.⁷ On October 31, 2011, at a final pretrial conference,⁸ Lagrone's attorney distributed a report authored by Dr. Anthony Jurek and dated October 24, 2011.⁹ The report stated Dr. Jurek's opinion that Lagrone was suffering from paranoid schizophreniaon the date of his offense and that "the diagnosis of Paranoid Schizophreniaimpaired the subject's capacity to understand the wrongfulness of his behavior and rendered him unable to conform his behavior to the requirements of law." On March 5, 2012, at a final pretrial conference, Lagrone's attorney requested an additional competency evaluation because she had reason to doubt Lagrone's competency.¹⁰ The court granted the request. On March 14, 2012, Dr. Deborah L. Collins filed a report in which she provided her belief to a reasonable degree of medical certainty that Lagrone was presently competent to proceed. The report "urge[d] court officers to remain sensitive in the event of any significant changes in [Lagrone's] overall mental status and/or compliance with psychiatric treatment," as "such changes [might] signal fluctuations in his competency and warrant his re-examination."

¶ 10 On March 16, 2012, a plea hearing was held at which the parties informed the court that they had negotiated an agreement according to which Lagrone would plead guilty to all five criminal counts against him but would proceed to try the mental responsibility phase of the bifurcated trial. If Lagrone's NGI plea were rejected, the State agreed to recommend a sentence of 15 years of initial confinement and seven years of extended supervision.

¶ 11 Lagrone then pleaded guilty to all five criminal counts against him. The court confirmed that Lagrone had reviewed or signed certain documents, including a plea questionnaire and waiver of rights form and addendum, correspondence between the State and Lagrone's attorney, a penalty chart, and jury instructions.¹¹ The court also confirmed that Lagrone understood his rights as listed in certain of the documents and the fact that he was waiving some of the rights by pleading guilty, but that he was not waiving his right to the second phase of the bifurcated trial.¹² The court asked Lagrone's attorney whether she was "satisfied Mr. Lagrone understands all the rights that he gives up about pleading guilty in phase one"; Lagrone's attorney indicated that she was satisfied.

¶ 12 On March 23, 2012, and April 27, 2012, the court conducted the responsibility phase of the bifurcated trial. Testimony was offered at this phase by: (1) the police officer to whom Lagrone had first spoken when Lagrone had turned himself in; (2) a social worker who had interacted with Lagrone on several occasions; (3) Dr. Jurek, who supported Lagrone's NGI plea; and (4) Dr. Pankiewicz, who did not support Lagrone's NGI plea. On April 27, 2012, the court found that Lagrone had "not satisfied the court on Phase Two of this two-phase trial" and that "he should be held responsible for the crimes for which he was convicted in the first phase." The court adjudged Lagrone guilty of the five counts against him and entered a judgment of conviction.

¶ 13 At no time during the responsibility phase did the court inform Lagrone that he had a right to testify or ask Lagrone whether he was waiving his right to testify.¹³ On May 25, 2012, the court sentenced Lagrone to a cumulative six years of initial confinement and six years of extended supervision.

¶ 14 On May 17, 2013, Lagrone filed a postconviction motion. According to the motion, "At no point during the court trial did the court conduct an on-the-record colloquy regarding Mr. Lagrone's right to testify.... Lagrone asserts that he did not understand that he had a right to testify at the mental responsibility phase." Lagrone...