State v. Nelson

• Decision Date: 16 July 2014
• Docket Number: No. 2012AP2140–CR.,2012AP2140–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Angelica C. NELSON, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

355 Wis.2d 722

849 N.W.2d 317

2014 WI 70

STATE of Wisconsin, Plaintiff–Respondent,

v.Angelica C. NELSON, Defendant–Appellant–Petitioner.

No. 2012AP2140–CR.

Supreme Court of Wisconsin.

Argued March 18, 2014.

Decided July 16, 2014.

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

For the plaintiff-respondent, the cause was argued by Aaron O'Neil, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review an unpublished decision of the court of appeals ¹ THAT AFFIRMED A JUDGment the eau claire county cirCuit court ² entered on a jury verdict convicting defendant Angelica Nelson of three counts of sexual assault of a child, contrary to Wis. Stat. § 948.02(2) (2011–12). ³

¶ 2 Our review concerns the circuit court's refusal to allow Nelson to testify at trial based on a finding that she was not validly waiving her right against self-incrimination. While Nelson did not intend to dispute that she engaged in conduct that met the elements of the crimes charged, she wanted to testify at trial because she “want[ed] [her] side to be heard.”

¶ 3 Nelson argues that the circuit court's decision deprived her of her rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and that she is automatically entitled to a new trial because the denial of a defendant's right to testify is not amenable to harmless error review.

¶ 4 The State does not dispute that the circuit court erred in refusing to allow Nelson to testify. Instead, it argues that harmless error review applies to that error under the governing framework of structural and trial errors. It further argues that the error was harmless because evidence showed that Nelson admitted to having sexual intercourse with a 14–year–old victim on three occasions, and she did not intend to dispute that assertion if she testified.

¶ 5 We conclude that harmless error review applies to the circuit court's alleged denial of Nelson's right to testify because its effect on the outcome of the trial is capable of assessment. See Arizona v. Fulminante, 499 U.S. 279, 307–08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). We further conclude that, given the nature of Nelson's defense and the overwhelming evidence of her guilt, the alleged error was harmless beyond a reasonable doubt. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND ⁴

¶ 6 Nelson was a friend of the family of the victim, D.M. She frequented D.M.'s neighborhood and walked D.M.'s younger siblings home from school on a regular basis. She saw D.M.'s mother, Tamyra, nearly every day. When she was 18 years old, Nelson met D.M., who was 14 years old at that time.

¶ 7 After she became acquainted with Nelson, Tamyra heard rumors that Nelson “thought [D.M.] was hot and that [Nelson] wouldn't mind dating him.” Tamyra told Nelson that under no circumstances was Nelson to be involved with D.M.

¶ 8 Shortly after having this conversation with Nelson, Tamyra heard that Nelson had not heeded her warning. Tamyra sent a text message to Nelson and asked her if she had “sex” with D.M. Nelson responded, “You're going to be mad at me; but, yes, I did.” After Tamyra reminded Nelson that D.M. was a child, Nelson texted back, “I know there[ ] [are] laws, but he's hot and I'm sorry.”

¶ 9 Tamyra called the police, and Officer Dana Brown responded to Tamyra's home. When Officer Brown arrived, Tamyra was on the phone with Nelson. Tamyra placed the call on speakerphone, and Officer Brown overheard Nelson admit to having sexual intercourse with D.M. at least three times. He also viewed the text messages between Tamyra and Nelson on Tamyra's phone.

¶ 10 Officer Brown subsequently interviewed D.M. in his squad car. D.M. said that he had “sex” with Nelson on three consecutive days behind the Altoona elementary school and that it was Nelson's idea. While D.M. could not remember a specific date that the assaults occurred, he recalled that he received a citation for violating curfew just after the third assault. Officer Brown testified that D.M. received that citation on May 11.

¶ 11 Officer Scott Kelley followed up on Tamyra's complaint by interviewing Nelson at the police station. During that interview, Nelson told Officer Kelley that she had sexual intercourse with D.M., whom she knew to be 14 years old at that time, on three occasions behind the elementary school and that it was D.M.'s idea.

¶ 12 The State charged Nelson with three counts of sexual assault of a child, contrary to Wis. Stat. § 948.02(2).⁵ The amended complaint stated that the assaults occurred on May 8, 9, and 10 of 2011. The State came up with these dates using the curfew citation D.M. received on the night of the third assault, and working backwards according to D.M.'s statement that the assaults occurred on three consecutive nights.

¶ 13 Nelson initially pleaded not guilty by reason of mental disease or defect. After the circuit court found that, despite some mental limitations, Nelson could appreciate the wrongfulness of her conduct and conform it to the requirements of the law, Nelson changed her plea to not guilty.

¶ 14 At trial, the State presented testimony from Tamyra, D.M., and the two police officers. When the State rested, Judge Gabler asked Nelson's attorney if Nelson wanted to testify. Nelson said that she did. Judge Gabler proceeded to engage Nelson in a colloquy about waiving her right against self-incrimination, which Nelson said she understood.

¶ 15 Judge Gabler also asked Nelson about the substance of her testimony. Nelson said that she “want[ed] to tell what actually happened.” She also wanted to testify that she did not unbuckle D.M.'s pants and that the assaults did not happen three days in a row. Judge Gabler explained that this testimony had no bearing on the elements of the offense, and made sure that Nelson's attorney had expressed to Nelson that “it wouldn't be a good idea” for Nelson to testify.

¶ 16 The circuit court then found that Nelson was not “intelligently and knowingly waiving her right against self-incrimination because she wants to testify to things that are completely irrelevant to the two things that the [S]tate has to prove.”

¶ 17 The jury convicted Nelson on all three counts, and the court withheld a sentence and placed her on probation for five years. Nelson filed a motion for post-conviction relief, asserting that the court violated her constitutional right to testify on her own behalf and therefore, a new trial was required. The circuit court denied Nelson's motion. The court of appeals affirmed, and we granted Nelson's petition for review.

II. DISCUSSION

A. Standard of Review

¶ 18 This review involves whether the harmless error doctrine applies to the denial of a defendant's right to testify. Whether a particular error is structural and therefore not subject to a harmless error review is a question of law for our independent review. State v. Travis, 2013 WI 38, ¶ 9, 347 Wis.2d 142, 832 N.W.2d 491. Because we determine that harmless error review applies to the denial of the right to testify, we must also decide whether the error in this case was harmless. This likewise presents a question of law for our independent review. State v. Jackson, 2014 WI 4, ¶ 44, 352 Wis.2d 249, 841 N.W.2d 791.

B. Right to Testify

¶ 19 A criminal defendant has a personal, fundamental right to testify and “present his own version of events in his own words.” Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); State v. Weed, 2003 WI 85, ¶ 39, 263 Wis.2d 434, 666 N.W.2d 485. This right originates from several constitutional provisions: the Fourteenth Amendment, which protects a defendant's due process right to be heard and offer testimony; the Compulsory Process Clause of the Sixth Amendment, which protects a defendant's right to call witnesses in her favor; and the Fifth Amendment, which protects a defendant's right against compelled testimony “unless he chooses to speak in the unfettered exercise of his own will.” Rock, 483 U.S. at 51–53, 107 S.Ct. 2704 (quoting Harris v. New York, 401 U.S. 222, 230, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)) (further citation omitted).

¶ 20 The fundamental nature of the right to testify means that it is not subject to forfeiture. State v. Ndina, 2009 WI 21, ¶¶ 30–31, 315 Wis.2d 653, 761 N.W.2d 612 (“[A] mere failure to object constitutes a forfeiture of [some] right[s] on appellate review.... [Other] rights are so important to a fair trial that ... [they] may ... be waived [only] personally and expressly.”). It may not be waived by a defendant's silence. Weed, 263 Wis.2d 434, ¶ 39, 666 N.W.2d 485. “[T]o ensure that a ... defendant is knowingly, intelligently, and voluntarily waiving his or her right to testify,” the circuit court must conduct a limited colloquy, inquiring as to whether the defendant is aware of his or her right against self-incrimination and has discussedthe right with counsel. Id., ¶¶ 41, 43.

¶ 21 Nelson argues that the circuit court erred in this case because, having engaged in the colloquy required by Weed, it had no basis to find that she was not validly waiving her right against self-incrimination. Because the State does not dispute that the circuit court erred, we do not decide that issue. At the outset, however, we briefly review the law on that point as part of a full discussion of the issue.

¶ 22 We then proceed to Nelson's argument that denial of the right to testify is not subject to harmless error review because it is not necessarily concerned with a defendant's chances of acquittal, but rather protects an individual's free choice and dignity. While we acknowledge the role of a defendant's autonomy in constitutional jurisprudence, we conclude that the denial of a defendant's right to testify is subject to harmless error review under Fulminante.

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