of a decision of the Court of Appeals. (L.C. No. 2011CF1996).
COURT: Circuit COUNTY: Milwaukee. JUDGE: Richard J.
defendant-appellant-petitioner, there were briefs by Kaitlin
A. Lamb, assistant state public defender and oral argument by
Kaitlin A. Lamb.
plaintiff-respondent, the cause was argued by Katherine D.
Lloyd, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general.
KINGSLAND ZIEGLER, J. I am authorized to state that Justice
SHIRLEY S. ABRAHAMSON joins this dissent.
Wis.2d 6] REVIEW of a decision of the Court of
ANNETTE KINGSLAND ZIEGLER, J.
[¶1] This is a review of an unpublished
decision of the court of appeals, State v. Lagrone,
2015 WI App 43, 362 Wis.2d 538, 865 N.W.2d 884, unpublished
slip op. (Wis. Ct.App. 2015), which affirmed the Milwaukee
County circuit court's judgment of conviction and order
denying defendant James Elvin Lagrone's ("
Lagrone" ) postconviction motion for [368 Wis.2d 7] an
evidentiary hearing and a new trial on the question of
Lagrone's mental responsibility.
[¶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), 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
[¶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 [368 Wis.2d 8] 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, 2013AP1424-CR (Wis. Ct.App. Apr.
[¶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. 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.
Wis.2d 9] 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. 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.
[¶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). [368 Wis.2d 10] Each count carried the domestic
abuse modifier. See Wis. Stat. § 968.075(1)(a)
[¶8] On May 13, 2011, Lagrone's attorney
informed the Milwaukee County circuit court 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 schizophrenia but was currently competent to
[¶9] On June 9, 2011, a preliminary hearing
was held and Lagrone pleaded not guilty and NGI. On June 21,
2011, the court 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 schizophrenia on the date of his offense.
However, the report also stated that Dr. Pankiewicz could not
support Lagrone's NGI plea. On October 31, 2011, at a
final pretrial conference, Lagrone's attorney distributed
a report authored by [368 Wis.2d 11] Dr. Anthony Jurek and
dated October 24, 2011. The report stated Dr. Jurek's
opinion that Lagrone was suffering from paranoid
schizophrenia on the date of his offense and that " the
diagnosis of Paranoid Schizophrenia impaired 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. 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 [368 Wis.2d 12] recommend a sentence of
15 years of initial confinement and seven years of extended
[¶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. 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. The court asked Lagrone's
attorney whether she was " satisfied Mr. Lagrone
understands all the [368 Wis.2d 13] 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. On May 25, 2012, the court sentenced
[368 Wis.2d 14] 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 argued that " the fundamental right
to testify . . . is applicable to the mental responsibility
phase" of a bifurcated trial resulting from an NGI plea,
and requested an evidentiary hearing " at which the
State carries the burden to show by clear and convincing
evidence that the defendant's waiver of the right to
testify at trial was knowing and voluntary." Lagrone
also requested an order granting a new trial on the
responsibility phase. He did not provide information
regarding the content of his proposed testimony.
[¶15] On May 29, 2013, the circuit
court issued a decision and order denying
Lagrone's motion. The court concluded:
[368 Wis.2d 15] [Lagrone] does not have a fundamental
constitutional right to testify during the mental
responsibility phase . . . . In the absence of either a
fundamental right or a statutory duty on the part of the
court to conduct a colloquy concerning the right to testify
in a Phase II proceeding, the court declines to hold an
evidentiary hearing, particularly where the defendant has not
set forth anything in his motion of what his testimony would
[¶16] On June 17, 2013, Lagrone filed a
notice of appeal. On April 7, 2015, the court of appeals
affirmed the decision of the circuit court in an unpublished
decision. Lagrone. The court of appeals acknowledged
that the question of whether circuit courts are required to
hold a right-to-testify colloquy at the responsibility phase
of a bifurcated trial resulting from an NGI plea was an
" issue of first impression," but resolved the case
on other grounds. Relying on State v. Nelson, which held that
" the denial of a defendant's right to testify is
subject to harmless error review," State v.
Nelson, 2014 WI 70, ¶ 43, 355 Wis.2d 722, 849
N.W.2d 317, the court of appeals concluded that " a
trial court's failure to hold an evidentiary hearing
following the failure to conduct a colloquy regarding a
defendant's right to testify is no different than the
direct denial of a defendant's right to testify at
trial" and that harmless error review therefore applied.
Lagrone. The court subsequently determined that any
error that had occurred was harmless.
[¶17] On May 7, 2015, Lagrone filed a
petition for review in this court. On September 9, 2015, this
court granted the petition.
Wis.2d 16] III. STANDARD OF REVIEW
[¶18] This court " review[s]
constitutional questions, both state and federal, de
novo." State v. Schaefer, 2008 WI 25, ¶
17, 308 Wis.2d 279, 746 N.W.2d 457 (citation omitted).
The Fundamental Constitutional Right of Criminal Defendants
to Testify in Their Own Defense
[¶19] In 1980 we confronted the question of
whether criminal defendants possess a constitutional right to
testify in their own behalf at a criminal trial. State v.
Albright, 96 Wis.2d 122, 126-29, 291 N.W.2d 487 (1980),
modified, Weed, 2003 WI 85, 263 Wis.2d 434, 666
N.W.2d 485. We explained that although the United States
Supreme Court had never determined whether a criminal
defendant possesses a constitutional right to testify, the
right was " part of the due process rights of the
defendant protected by the Fourteenth Amendment."
Albright, 96 Wis.2d at 128. We thus concluded that with
reference to a criminal trial, wherein the State bears the
burden to prove the defendant's guilt beyond a reasonable
doubt, " there is a constitutional due process right on
the part of the criminal defendant to testify in his own
behalf." Id. at 129.
[¶20] We also examined in Albright whether a
criminal defendant's right to testify is a "
fundamental" constitutional right such that, as with
rights ranging from the right to an appeal to the right to
the assistance of counsel, only a defendant's personal
waiver of [368 Wis.2d 17] the right is an effective waiver.
Id. at 129-30 (citations omitted). While recognizing
that a criminal defendant's right to testify is "
important," we declined to characterize it as
fundamental, ultimately concluding, " We perceive no
need for courts in post conviction hearings to delve into the
processes by which an attorney and his client determine
whether the defendant should waive his right to
testify." Id. at 130-32. Instead, "
counsel, in the absence of the express disapproval of the
defendant on the record during the pretrial or trial
proceedings, may waive the defendant's right to
testify." Id. at 133.
[¶21] Less than a decade later, in Rock v.
Arkansas, the United States Supreme Court recognized that the
United States Constitution guarantees " a defendant in a
criminal case . . . the right to take the witness stand and .
. . testify in his or her own defense." Rock,
483 U.S. at 49. Although the Court did not isolate any single
explicit statement of the right in the federal constitution,
and although the Court acknowledged that the right " is
a change from the historic common-law view, which was that
all parties to litigation, including criminal defendants,
were disqualified from testifying because of their interest
in the outcome of the trial," id., the Court explained
that the right " is essential to due process of law in a
fair adversary system" and " has sources in several
provisions of the Constitution." Id. at 51
(citing Faretta v. California, 422 U.S. 806, 819,
n.15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).
[¶22] First, the Court explained, a criminal
defendant's right to testify is a " necessary
corollary to the Fifth Amendment's guarantee against
compelled testimony." Id. at 52. The Fifth
Amendment of the United States Constitution states in part,
" No person . . . shall be compelled in any criminal
case to be a witness [368 Wis.2d 18] against himself . . .
." U.S. Const. amend. V. The Court reasoned
that a privilege against self-incrimination is exercised when
an accused decides whether to testify; " [e]very
criminal defendant is privileged to testify in his own
defense, or to refuse to do so." Rock, 483 U.S.
at 53 (quoting Harris v. New York, 401 U.S. 222,
230, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)).
[¶23] Second, a criminal defendant's
right to testify is located in the Compulsory Process Clause
of the Sixth Amendment of the United States Constitution.
Id. at 52. The amendment provides in part, " In
all criminal prosecutions, the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in
his favor . . . ." U.S. Const. amend. VI. "
Logically included in the accused's right to call
witnesses whose testimony is 'material and favorable to
his defense' is a right to testify himself, should he
decide it is in his favor to do so." Rock, 483
U.S. at 52 (citation omitted).
[¶24] Finally, " [t]he necessary
ingredients of the Fourteenth Amendment's guarantee that
no one shall be deprived of liberty without due process of
law include a right to be heard and to offer testimony. . .
." Id. at 51. The Rock Court added in a
footnote that " [t]his right reaches beyond the criminal
trial: the procedural due process constitutionally required
in some extrajudicial proceedings includes the right of the
affected person to testify." Id. at 51 n.9. The
Court cited as examples cases involving probation revocation,
[368 Wis.2d 19] parole revocation, and the termination of
welfare benefits. Id. (citations omitted).
[¶25] After Rock this court revisited
Albright and concluded that a criminal defendant's
constitutional right to testify in his or her behalf is a
fundamental right. Weed, 263 Wis.2d 434, ¶
¶ 37-39. We further concluded that " a circuit
court should conduct a colloquy with the defendant in order
to ensure that the defendant is knowingly and voluntarily
waiving his or her right to testify," though recognizing
that only a minority of jurisdictions required the practice.
Id. at ¶ ¶ 40-41.
[¶26] Most recently, we recognized that the
right to testify identified in Rock finds additional support
in the Wisconsin Constitution. State v. Denson, 2011
WI 70, ¶ ¶ 49-54, 335 Wis.2d 681, 799 N.W.2d 831.
Article I, Section 7 of the Wisconsin Constitution states in
part, " In all criminal prosecutions the accused shall
enjoy the right to be heard by himself and counsel . . .
[and] to have compulsory process to compel the attendance of
witnesses in his behalf . . . ." Wis. Const. art. I,
§ 7. Article I, Section 8 of the Wisconsin Constitution
states in part, " No person . . . may be compelled in
any criminal case to be a witness against himself or
herself." Wis. Const. art. I, § 8(1). Thus the due
process, compulsory process, and non-incrimination sources of
the federal constitutional right of criminal defendants to
testify in their own behalf have analogues in our state
[¶27] Given this history, Lagrone now argues
that an on-the-record colloquy regarding waiver of his
fundamental right to testify should also be required at the
responsibility phase of his bifurcated trial. In order to
test the merits of this claim, we must review the [368 Wis.2d
20] nature and purpose of NGI pleas and of the responsibility
phase of bifurcated NGI trials.
NGI Pleas and the Responsibility Phase of the Bifurcated
Trial Resulting From an NGI Plea
[¶28] At the outset, it is critical to
understand the essential differences between a plea of not
guilty and a plea of not guilty by reason of mental disease
or defect. Typically, upon a plea of not guilty, the parties
proceed to trial wherein the State bears the burden of
securing a unanimous jury verdict that it has proven each
essential element of the offense charged against the criminal
defendant beyond a reasonable doubt. See, e.g., Holland
v. State, 91 Wis.2d 134, 138, 280 N.W.2d 288 (1979). A
court may not direct a verdict of guilt against a defendant
in a criminal case. State v. Peete, 185 Wis.2d 4,
19, 517 N.W.2d 149 (1994) (citation omitted). After the jury
renders a guilty verdict, the circuit court sentences the
defendant. See, e.g., In re Eckart, 85 Wis. 681,
681, 56 N.W. 375 (1893).
[¶29] If, however, a criminal defendant
enters a plea of NGI (without joining it with a plea of not
guilty), the defendant thereby " admits that but for
lack of mental capacity the defendant committed all the
essential elements of the offense charged in the indictment,
[368 Wis.2d 21] information or complaint." Wis. Stat.
§ 971.06(1)(d). " [T]he court will find the
defendant guilty of the elements of the crimes, and the NGI
plea will be left for trial." State v. Burton,
2013 WI 61, ¶ 43, 349 Wis.2d 1, 832 N.W.2d 611. This
trial, however, is much different than the criminal trial
previously discussed. In this proceeding--which is concerned
with the criminal defendant's mental responsibility--the
defendant, not the State, bears the burden of establishing
mental disease or defect excluding responsibility. See Wis.
Stat. § 971.15(3). The burden on the defendant is not
" beyond a reasonable doubt," but instead " to
a reasonable certainty by the greater weight of the credible
evidence." Id. The defendant need not obtain a
unanimous jury verdict, but instead only a five-sixths
verdict. Magett, 355 Wis.2d 617, ¶ 39. And,
unlike in a criminal trial, " 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." Id.
[¶30] Thus, under the posture of the current
case, Lagrone has already admitted that but for lack of
mental capacity he committed all the essential elements of
the criminal offenses charged against him. If not for his NGI
plea, Lagrone would have proceeded to sentencing for
committing those crimes. With this general background in
place, we now proceed to examine in closer detail the nature
and purpose of NGI pleas and their concomitant procedures.
[¶31] Under Wis. Stat. § 971.15, "
Mental responsibility of defendant," " [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 [368 Wis.2d 22] of his or her conduct or conform
his or her conduct to the requirements of law." §
971.15(1). An NGI plea is " an affirmative defense which
the defendant must establish to a reasonable certainty by the
greater weight of the credible evidence." §
[¶32] The affirmative defense of NGI
established by Wis. Stat. § 971.15(1) builds upon
the centuries-long evolution of the collection of
interlocking and overlapping concepts which the common law
has utilized to assess the moral accountability of an
individual for his antisocial deeds. The doctrines of actus
reus, mens rea, insanity, mistake, justification, and duress
have historically provided the tools for a constantly
shifting adjustment of the tension between the evolving aims
of the criminal law and changing religious, moral,
philosophical, and medical views of the nature of man.
Powell v. Texas, 392 U.S. 514, 535-36, 88 S.Ct.
2145, 20 L.Ed.2d 1254 (1968) (plurality) (emphasis added). We
have recognized with regard to Wisconsin's NGI plea that
" [w]hether or not there should be criminal
responsibility is essentially a moral issue." Steele
v. State, 97 Wis.2d 72, 96, 294 N.W.2d 2 (1980). That
is, at the heart of any NGI inquiry is the following
[I]s this person who has been found guilty beyond a
reasonable doubt of criminal conduct to be punished or is
there to be a different disposition because, in good
conscience and public morality, the defendant is a person,
because of mental disease or defect, who ought not to be held
criminally liable for his or her conduct[?]
State v. Koput, 142 Wis.2d 370, 389, 418 N.W.2d 804
(1988). Importantly, however, " a criminal
defendant's right to an NGI defense is a statutory right
that is not [368 Wis.2d 23] guaranteed by either the United
States or Wisconsin Constitutions." Magett, 355
Wis.2d 617, ¶ 32 (citations omitted).
[¶33] Under current statutory procedures,
the dual issues of whether a defendant has committed the
criminal offense alleged and whether a defendant may be held
responsible for committing that offense are determined in
separate proceedings. See Wis. Stat. § 971.165;
Burton, 2013 WI 61, 349 Wis.2d 1, ¶ ¶
42-46, 832 N.W.2d 611. The [368 Wis.2d 24]
responsibility phase of an NGI trial, in contrast to the
so-called " guilt phase," contains " elements
of civil procedure" and is " something close to a
civil trial." Magett, 355 Wis.2d 617, ¶
¶ 36, 39-40. Specifically: (1) the burden of proof to
establish mental disease or defect, which is on the
defendant, is the same as the burden required in civil trials
for most issues; (2) a judge may direct a verdict in favor of
the State on the issue of mental responsibility; and (3) the
defendant need only obtain a five-sixths jury verdict on the
issue of mental responsibility. See id., ¶ 39
[¶34] On the other hand, the mental
responsibility phase is not " purely civil."
Koput, 142 Wis.2d at 397. We have instead
characterized the mental responsibility phase as " a
special proceeding in the dispositional phase of a criminal
proceeding--a proceeding that is not criminal in its
attributes or purposes." Id.
[¶35] In Koput we concluded that, given the
nature of the responsibility phase, a unanimous jury verdict
on the issue of mental responsibility was not required.
Id. at 373-74. In rejecting a contrary conclusion,
we said that the guilt and responsibility phases are not
" but divisions of a single criminal trial" :
The thesis of the public defender that the responsibility
phase is but one part of a single criminal proceeding, and
therefore must, in all respects, be treated in the same way
as the guilt phase, is unsupportable. The public
defender's syllogism--a criminal defendant has a
constitutional right to a unanimous verdict in a criminal
case; the responsibility phase of a sequential [368 Wis.2d
25] trial is a part of a criminal trial, therefore the
five-sixths verdict returned in Koput's case denied him a
constitutional verdict--is flawed, because it is demonstrably
evident that the responsibility phase is not a part of a
" criminal" trial. The entire history of bifurcated
trials . . . makes evident that the purpose of each of the
two phases is entirely different.
Id. at 394-95. With regard to the purpose of the
responsibility phase, we observed that " in considering
the question of insanity, 'we are largely concerning
ourselves with the difference in the institutional treatment
of the defendant,'" and added that the question to
be answered in the mental responsibility phase is "
noncriminal" : " [t]he mental state, other than
criminal intent, at the time of a crime is no more a matter
of criminal inquiry than an inquest into mental
responsibility at the time of the execution of a will."
Id. at 392, 396 & n.17 (citation omitted). In fact,
although an NGI plea is described in Wis. Stat. §
971.15(3) as an " affirmative defense,"
[i]t is obvious . . . that the affirmative defense mentioned
in sec. 971.15(3) is of an entirely different nature from
affirmative defenses utilized by defendants in the guilt
phase, i.e., alibi, privilege, et cetera, which if proved
result in an outright dismissal of the charge. Success on the
affirmative defense of mental disease or defect does not have
that result; rather, it is an affirmative defense to "
responsibility" --it relieves the person of the
sanctions for criminal conduct. It does not relieve the
person already found guilty in the first phase of the factual
finding of ...