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State v. Lagrone

Supreme Court of Wisconsin

April 22, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
James Elvin Lagrone, Defendant-Appellant-Petitioner

          REVIEW of a decision of the Court of Appeals. (L.C. No. 2011CF1996). COURT: Circuit COUNTY: Milwaukee. JUDGE: Richard J. Sankovitz.

         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. I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.

          OPINION

         [368 Wis.2d 6] REVIEW of a decision of the Court of Appeals.

          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          [¶1] This is a review of an unpublished decision of the court of appeals, State v. Lagrone, 2015 WI App 43, 362 Wis.2d 538, 865 N.W.2d 884, unpublished slip op.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.[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 [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. 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.

         [368 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.[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). [368 Wis.2d 10] 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 court[5] 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 stand trial.

          [¶9] On June 9, 2011, a preliminary hearing was held and Lagrone pleaded not guilty and NGI. On June 21, 2011, the court[6] 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.[7] On October 31, 2011, at a final pretrial conference,[8] Lagrone's attorney distributed a report authored by [368 Wis.2d 11] Dr. Anthony Jurek and dated October 24, 2011.[9] 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.[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 [368 Wis.2d 12] 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 [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.[13] 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[14] 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 have been.

          [¶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.

         [368 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).

         IV. ANALYSIS

         A. 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.[15] 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.[16] " 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 constitution.

          [¶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.[17]

         B. 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." § 971.15(3).

          [¶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 question:

[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.[18] 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 (citations omitted).

          [¶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 ...

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