N. PATRICK CROOKS, J.
¶ 1. On August 20, 2010, Eddie Lee Anthony (Anthony) killed S.J., the mother of his children. The evidence showed that Anthony beat and stabbed S.J. 45 times with an ice pick while their children hid in a closet in the next room. In addition to the puncture wounds, S.J. suffered four broken ribs, as well as numerous abrasions and contusions, leading the medical examiner to consider the cause of death multiple sharp and blunt force injuries.
¶ 2. Anthony never denied killing S.J. His theory of the case was self-defense. To support that theory, Anthony planned to serve as the sole eyewitness at his jury trial. But that strategy never came to fruition, as the circuit court refused to allow Anthonys testimony.
¶ 3. The impetus for the circuit courts decision regarding Anthonys right to testify involved an unusual situation: Anthony adamantly insisted that he would inform the jury of his prior conviction for armed robbery which occurred in 1966. Anthony protested that this conviction was wrongful and that he stayed [in prison] like 12 mother-fucking years for something [he] didnt do. He argued that he had a right to inform the jury of this information because he wanted the jury to know the truth, the whole truth.
¶ 4. Needless to say, it is unusual for a defendant on trial for first-degree intentional homicide to insist on bringing up a prior felony conviction involving a violent crime. However, Anthony explained that he wanted the predominantly white jury in one of the most racist cities in the country to know that he believed his purportedly wrongful conviction from 1966 was racially motivated. Apparently, Anthony believed that the States charge of first-degree intentional homicide in this case was also racially motivated, as Anthony insisted that he killed S.J. in self-defense.
¶ 5. The circuit court decided that Anthonys proposed testimony concerning the alleged wrongful conviction was irrelevant. The circuit court explained the basis for its ruling multiple times. With each explanation, Anthony became more agitated, to the point where additional sheriffs deputies were called into the courtroom (a total of eight were present). Anthony promised numerous times that, if permitted to testify, he would disobey the circuit courts evidentiary ruling. He emphasized at one point, Im going to keep saying it. You got to carry me out of here.
¶ 6. Anthony gave every indication that his irrelevant testimony would not stop at the alleged wrongful conviction. He insisted he would tell the jury everything I can remember all the way back to when I was five years old. In fact, he stated more than once that he wanted to bring everything out.
¶ 7. In light of Anthonys conduct, detailed further below, the circuit court determined that Anthony forfeited his right to testify at trial. The jury convicted Anthony of first-degree intentional homicide. He was sentenced to life imprisonment without the possibility of release under extended supervision.
¶ 8. The primary issue before the court is a significant one: did the circuit court violate Anthonys constitutional right to testify when it determined, over timely defense objection, that Anthony forfeited his right by exhibiting stubborn and defiant conduct that threatened both the fairness and reliability of the criminal trial process as well as the preservation of dignity, order, and decorum in the courtroom?
¶ 9. The secondary issue that this case presents is one that we have recently addressed: is a violation of the right to testify subject to harmless error analysis?
¶ 10. Because the circuit courts forfeiture determination was not arbitrary or disproportionate to the purposes it was designed to serve, we hold that the circuit court did not err in denying Anthony the right to testify. Anthony forfeited his right to testify by displaying stubborn and defiant conduct that presented a serious threat to both the fairness and reliability of the criminal trial process and the preservation of dignity, order, and decorum in the courtroom.
¶ 11. Although we conclude that the circuit court did not err in refusing to allow Anthonys testimony, we further hold that, even if we assumed error, such error is subject to harmless error analysis. Given the overwhelming evidence of Anthonys guilt, the assumed error was harmless beyond a reasonable doubt.
¶ 12. Therefore, we affirm the decision of the court of appeals and uphold Anthonys conviction.
I. Background
A. Facts
¶ 13. On the night of August 20, 2010, Anthony and S.J. argued at their home. Anthony had accused S.J. of having an affair. Their argument spanned the course of approximately one hour and a half, taking place both inside and outside their home.
¶ 14. Multiple people witnessed the argument. One witness, L.J., S.J.s 17 year-old daughter, recounted most of the incident leading to her mothers death. L.J. testified that she overheard Anthony tell S.J. that if she (S.J.) left the house he would kill her. At the time, Anthony was holding an ice pick in his hand.
¶ 15. Despite Anthonys threat, S.J. left the house and went for a walk. Anthony tailed her with the ice pick. L.J. followed Anthony and S.J. to a neighborhood park, where she witnessed the couple continuing their argument. Anthony and S.J. eventually returned home; L.J. went to a friends house.
¶ 16. Roughly 15 minutes later, L.J. received a phone call from S.J. S.J. was screaming and asked L.J. to hurry home. When L.J. arrived, the doors were locked and she could hear S.J. screaming. L.J. called 9-1-1. Anthony then exited the home and told L.J. that her mother did not want her to call the police. He said that S.J. would come outside in 10 to 15 minutes.
¶ 17. Once Anthony drove away, L.J. kicked in the front door and found her mother dead in an upstairs room.
¶ 18. Neighbors Sandra Rasco and Tiera Patterson Hogans corroborated much of L.J.s testimony. They also testified that S.J. told them that Anthony had held an ice pick to her throat and threatened to take her to the woods and kill her. That threat occurred just two days prior to S.J.s death.
1 19. Three witnesses were inside S.J. and Anthonys home at the culmination of the argument. R.J. is the daughter of S.J. and Anthony. She saw Anthony enter S.J.s room with an ice pick. At the time, R.J. was hiding in a closet in another room with her two sisters, M.J. and A.J. R.J. heard S.J. yell stop, please stop and Im sorry, Im sorry.
¶ 20. After fleeing the scene, Anthony visited Janet Mayfield, the mother of his teenage son. He told Mayfield that he stabbed S.J. forty to fifty times. He never mentioned self-defense. He explained that he believed S.J. was having an affair and that Rasco had something to do with it. He asked Mayfield for a gun and money. He stated that he was going to return to his home to kill Rasco and the man that he suspected of having an affair with S.J.
¶ 21. The medical examiner, Christopher Poulos, testified that S.J. suffered 45 sharp force injuries involving the head, chest, abdomen, arms, hands, and leg. Poulos opined that seven of these wounds could be considered defensive puncture wounds. Poulos testified to a reasonable degree of medical certainty that the 45 sharp force injuries could have been caused by an ice pick.
¶ 22. S.J. also sustained numerous blunt force trauma wounds. These included a contusion of the head, multiple abrasions and contusions of the torso, and four broken ribs.
¶ 23. However, the single most lethal injury, according to Poulos, was a three to four inch puncture wound to S.J.s aorta.
B. Procedural History
¶ 24. Anthony was arrested in Bradley, Illinois, after a highway police chase. The State charged Anthony with one count of first-degree intentional homitide, contrary to Wis. Stat. § 940.01(l)(a). Anthony entered a not guilty plea and went to trial.
¶ 25. At trial, the State presented the evidence detailed above. After the State rested, the circuit court asked Anthonys counsel whether Anthony wanted to testify. Counsel responded that Anthony wished to do so.
¶ 26. The circuit court then addressed the matter of Anthonys prior convictions relevant for impeachment purposes. Based on a pretrial ruling, the circuit court instructed Anthony to answer two if asked how many prior convictions he possessed. After some explanation, Anthony stated that he understood.
¶ 27. However, Anthony then asked whether he had a right to open the door and bring in all [his] convictions all the way back to 1966. He explained:
Im thinking now it might be to my benefit to show that in my mind if I go back all the way to 1966 — because like I say [] I dont care what nobody do think, but in 1966 I was convicted of an armed robbery of a white man. I was only 19 and I was innocent. I stayed like 12 mother-fucking years for something I didnt do. Im going to tell it to the jury.
¶ 28. The circuit court ruled that such testimony was irrelevant to the charge of first-degree intentional homicide, to which Anthony responded Ill bring it up. I have a right. The circuit court explained that the alleged wrongful conviction could not help the jury decide whether Anthony committed the charge he currently faced. Anthony retorted that he wanted the jury to know the truth, the whole truth. In the midst of this discussion, Anthonys reasoning became clearer:
I know when I got convicted of [] the armed robbery, do you understand, [I had] an all white jury [and] now I got eleven white people on the jury. This is 2011. That happened do you understand 40 some years ago [and] . . . Milwaukee [is] one of the most racist [] cities in the country, and the jury [is] going to feel what I say. If they dont feel it Ill be glad to die in prison.
¶ 29. The circuit court asked Anthony to take a deep breath and calm down. The circuit court explained that if Anthony testified about the alleged wrongful conviction he would be cut off. Anthony interrupted:
Cut me off. [The jury is the] judge of the facts. Thats a fact that happened thats true. Im going to keep saying it. You got to carry me out of here. Im going to say it, your Honor. . . .
The following exchange ensued:
THE COURT: Were kind of running out of time here. I just want to be clear with you. If you respect me youll respect this. If you go into detail about [the alleged wrongful conviction] Im directing you to stop talking and if you dont stop talking I will take you off the stand, bring you back in the bullpen.
THE DEFENDANT: Okay, all right.
THE COURT: That means that the rest of your story will not be told to the jury. Youll be in direct violation of my direction to you not to talk about the armed robbery. If you go into that thats the end of your testimony. Ill find youve blatantly violated my rule to you and they will take you off the stand. That will be the end of it.
THE DEFENDANT: Okay. Well do that, whatever, whatever.
THE COURT: Mr. Anthony, Im talking.
THE DEFENDANT: Im sorry, Im sorry.
THE COURT: Youre promising me right now youre going to break my rule?
THE DEFENDANT: I promise you right now I want the jury to hear the facts because you said the jury is the judge of the facts, you are the judge of the law, and Anpu Aungk. I know this for a fact. If youre as honorable as you appear to be to me when you think about all the things that have happened to people like me in this country you cannot deny what Im about to say.. . .
¶ 30. After Anthony engaged in a brief discussion with counsel, the circuit court asked whether he would agree not to talk about the alleged wrongful conviction. Anthony responded that he could not avoid it. The circuit court ruled that Anthony could no longer testify:
THE COURT: I could put you on the stand but if you went into that, I try to cut off that line of questioning Id have a difficult situation for two reasons.
THE DEFENDANT: I understand.
THE COURT: The difficulties would be visited on your head. First of all the jury would hear the part about the armed robbery but not all the rest of the story and so they might think oh, this is the guy whos not only accused of killing [S.J.] but hes also an armed robber and they wouldnt get the rest of the facts. Thats one problem. I want to avoid that.
The other problem is this: Youre going to be shackled to the witness stand. I cant easily remove you from the courtroom. Ill have to remove the jury from the courtroom instead, and removing the jury from the courtroom is not something I can do effortlessly or quietly or without seeing that you would be making a ruckus on the stand. When I say ruckus what Im referring to is the way that you were very, you know, very animated [in the way you were] talking before. I dont want you to look worse in the eyes of the jury because of the way youre behaving on the stand, so if youre promising me right now that youre going to talk about this matter that Ive excluded I wont let you take the stand. I dont want to make this worse for yourself than it is already.
¶ 31. Anthonys counsel objected and made an offer of proof as to Anthonys anticipated trial testimony. Anthony would have testified that he killed S.J. in self-defense. He would have explained that a physical altercation between himself and S.J. ensued and that he believed S.J. had picked up a knife. At that point, Anthony would testify, he used the ice pick to defend himself.
¶ 32. Anthony also would have testified that he stabbed S.J. so many times because he did not realize or understand the threat had been terminated. Regarding Anthonys decision to flee the scene of the crime, he would have explained that he had a heightened fear of police due to past experiences in both Wisconsin and Illinois.
. The circuit court ensured that Anthony understood he would not be able to testify about his self-defense theory if he insisted on disobeying the circuit courts evidentiary ruling. The circuit court once again asked whether Anthony intended to break its rule, to which Anthony responded Your Honor, I want the jury — I want the jury to know everything I can remember all the way back to when I was five years old.
¶ 34. The circuit court provided Anthony with two more opportunities to change his mind, but to no avail. In the midst of the discussion, the circuit court further expounded the basis for its ruling:
THE COURT: This is not out of respect for me. Im not making an arbitrary ruling making people follow just for my pleasure. I have this rule because this jury has a difficult decision to make. I dont want it made more difficult by having to consider matters which dont help their decision, and your difficult experience in Illinois as a younger man doesnt help them make their decision today. It might in your mind inject some sympathy into the jury for you but theyre explicitly told they cant decide the case based on sympathy. They cant have sympathy for [S.J.], they cant have sympathy for you. They have to decide what the facts are without regard to sympathy.
If it was a simple balancing test, if somebody told me that they were intentionally going to break one of the rules that we set for the court and it carried only a little bit of prejudice and there was an awful lot of probative value they would otherwise have in their testimony, if it was just a balancing test we would apply, [it would] give a person carte blanche to break the courts rules, so [he or she would] break it every time. Theres nothing a court could do to enforce those rules. While at this point it seems like theres nothing that serious about Mr. Anthony telling his sorry tale about what happened in the sixties we dont know for sure whether that is something that would make a difference to this jury that might [] end this very carefully [] constructed process we have of getting the truth which is why Ive said this cant come in. As a consequence if Mr. Anthony tried to get it in hes forfeited his right to testify.
As a result of the circuit courts ruling, Anthony was unable to offer any evidence of self-defense.
¶ 35. On September 15, 2011, the jury found Anthony guilty of first-degree intentional homicide. On October 28, 2011, the circuit court sentenced Anthony to life imprisonment without eligibility for release under extended supervision. The circuit court entered a judgment of conviction on November 1, 2011.
¶ 36. On October 16, 2012, Anthony filed a post-conviction motion for a new trial on the basis that he was denied the effective assistance of counsel. Anthony contended in part that his trial counsel was ineffective for failing to argue that Anthonys right to testify was absolute, subject only to telling the truth.
¶ 37. The circuit court denied Anthonys post-conviction motion in a written decision dated February 5, 2013. The circuit court reasoned that Anthony was not prejudiced by his trial counsels failure to argue the absolute nature of his right to testify because it would have rejected that argument anyway. It noted that the right to testify is subject to reasonable limitations, such as procedural and evidentiary rules that control the presentation of evidence.
¶ 38. The circuit court also reasoned that the right to testify can be limited in order to preserve dignity, order, and decorum in the courtroom, citing to Illinois v. Allen, 397 U.S. 337 (1970), for support. In Allen, the United States Supreme Court held that a criminal defendant may forfeit his or her constitutional right to be present at trial through misconduct. Illinois v. Allen, 397 U.S. 337, 343 (1970).
¶ 39. Relying in part on Allen to justify its decision concerning forfeiture, the circuit court recounted Anthonys demeanor at trial, described above. The circuit court referenced additional factual findings: I recall how enraged he was, how tensely coiled he became the more he insisted on telling the jury about the 1966 conviction, and how close he seemed to a breaking point. The circuit court explained, I did not state these additional observations in so many words at the time. I was hoping not to provoke another outburst.
¶ 40. In light of Anthonys insistence on disregarding the circuit courts evidentiary ruling as well as his angry demeanor, the circuit court held that Anthony had forfeited his right to testify. Consequently, the circuit court reasoned that Anthony could not show prejudice for purposes of his claim for ineffective assistance.
¶ 41. The court of appeals affirmed. The court of appeals did not decide whether the circuit court erred in its forfeiture determination. Rather, it performed a harmless error analysis and concluded that any error on the part of the circuit court was harmless in light of the overwhelming evidence of Anthonys guilt.
¶ 42. We granted Anthonys petition for review.
II. Standard of Review
¶ 43. We are asked to determine whether Anthonys constitutional right to testify was violated. Whether an individual is denied a constitutional right is a question of constitutional fact that this court reviews independently as a question of law. State v. Cummings, 199 Wis. 2d 721, 748, 546 N.W.2d 406 (1996). We accept the circuit courts findings of evidentiary or historical fact unless they are clearly erroneous. State v. Ndina, 2009 WI 21, ¶ 45, 315 Wis. 2d 653, 761 N.W.2d 612. We apply constitutional principles to those evidentiary or historical facts independently of the circuit court and court of appeals but benefitting from those courts analyses. Id.
¶ 44. We are also asked to decide whether a violation of a defendants right to testify is subject to harmless error analysis. 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. Nelson, 2014 WI 70, ¶ 18, 355 Wis. 2d 722, 849 N.W.2d 317. Whether an error is harmless is also a question of law for our independent review. Id.
III. Discussion
A. Right to Testify
¶ 45. Under the common law rule, criminal defendants were prohibited from testifying on their own behalf at trial. Ferguson v. Georgia, 365 U.S. 570, 573-74 (1961). They were deemed incompetent to do so, the theory being that their testimony was self-serving and therefore untrustworthy. Id. However, beginning in 1864, states began to enact general competency statutes for criminal defendants, and the United States Congress followed suit in 1878. Id. at 577. Those laws helped serve the presumption of innocence that attaches to criminal prosecutions. See id. at 580-81 (Experience under the American competency statutes was to change the minds of many who had opposed them. It was seen that the shutting out of [a defendants testimony] could be positively hurtful to the accused, and that innocence was in fact aided, not prejudiced, by the opportunity of the accused to testify under oath.).
¶ 46. Over a century later, the United States Supreme Court explicitly recognized that a defendant in a criminal case has a fundamental constitutional right to testify in his or her own defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987); See also United States v. Dunnigan, 507 U.S. 87, 96 (1993). That right stems from several provisions of the Constitution:
the Fourteenth Amendment, which protects a defendants due process right to be heard and offer testimony; the Compulsory Process Clause of the Sixth Amendment, which protects a defendants right to call witnesses in her favor; and the Fifth Amendment, which protects a defendants right against compelled testimony unless he chooses to speak in the unfettered exercise of his own will.
Nelson, 355 Wis. 2d. 722, ¶ 19 (internal quotation marks omitted).
¶ 47. It has been recognized that the right to testify is grounded in personal autonomy and may not be waived by counsel. See Jones v. Barnes, 463 U.S. 745, 751 (1983). In Wisconsin, we require that a circuit court conduct a colloquy with the defendant in order to ensure that the defendant is knowingly and voluntarily waiving his or her right to testify. State v. Weed, 2003 WI 85, ¶ 40, 263 Wis. 2d 434, 666 N.W.2d 485. Stated differently, the right to testify cannot be lost, that is to say forfeited, by a defendants silence. Nelson, 355 Wis. 2d 722, ¶ 20.
¶ 48. Although the right to testify is a fundamental constitutional right grounded in personal autonomy, it is not absolute. For example, there is no constitutional right to commit perjury. State v. McDowell, 2004 WI 70, ¶ 34, 272 Wis. 2d 488, 681 N.W.2d 500 (quoting Nix v. Whiteside, 475 U.S. 157, 173 (1986)). There is also no constitutional right to present irrelevant evidence. State v. Robinson, 146 Wis. 2d 315, 332, 431 N.W.2d 165 (1988). Moreover, a criminal defendants right to present relevant testimony is subject to reasonable restrictions. Rock, 483 U.S. at 55-56.
¶ 49. In Rock, the United States Supreme Court considered whether Arkansas per se rule prohibiting the admission of hypnotically refreshed testimony violated the petitioners right to testify. Id. at 45. Arkansas rule was designed to ensure that only reliable evidence be admitted at trial. Id. at 56. Because Arkansas considered hypnotically refreshed testimony per se unreliable, circuit courts had no discretion to admit such testimony, even if the circumstances of a particular case established the trustworthiness of the evidence. Id. at 57 n.12.
¶ 50. The Court in Rock recognized that the right to present relevant testimony is not limitless and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Id. at 55 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). For example, [n]umerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendants right to testify. Id. at 55 n.11. However, such limitations on the right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. Id. at 56.
¶ 51. Having determined that [w]holesale inadmissibility of a defendants testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections, Id. at 61, the Court in Rock held that Arkansas per se rule violated the defendants right to testify. Id. at 62. Central to the Courts reasoning was the fact that the per se rule impeded the circuit courts ability to control the presentation of evidence so as to effectuate the ascertainment of truth. See id. at 56-62.
¶ 52. The takeaway from Rock is a methodology for reviewing a decision denying a defendants request to testify. Arredondo v. Pollard, 498 F. Supp. 2d 1113, 1126 (E.D. Wis. 2007). The reviewing court asks whether the reasons given for the denial are sufficiently persuasive to justify depriving the defendant of his fundamental constitutional right to testify. Id.
B. Forfeiture by Conduct
¶ 53. Prior to reviewing the circuit courts decision to deny Anthonys request to testify, we must address a threshold issue in this case: whether a criminal defendant may forfeit his or her right to testify through conduct incompatible with the assertion of the right. Neither the United States Supreme Court nor this court has addressed the issue.
¶ 54. We have recognized two distinct ways in which a defendant may give up his rights: waiver and forfeiture. State v. Pinno, 2014 WI 74, ¶ 56, 356 Wis. 2d 106, 850 N.W.2d 207. Waiver is the intentional relinquishment or abandonment of a known right. Ndina, 315 Wis. 2d 653, ¶ 29 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). [W]aiver typically applies to those rights so important to the administration of a fair trial that mere inaction on the part of a litigant is not sufficient to demonstrate that the party intended to forgo the right. State v. Soto, 2012 WI 93, ¶ 37, 343 Wis. 2d 43, 817 N.W.2d 848.
¶ 55. Forfeiture, on the other hand, often involves the failure to make the timely assertion of a right. Ndina, 315 Wis. 2d 653, ¶ 29 (quoting Olano, 507 U.S. at 733). Rights that are subject to forfeiture are typically those whose relinquishment will not necessarily deprive a party of a fair trial, and whose protection is best left to the immediacy of the trial, such as when a party fails to raise an evidentiary objection. Soto, 343 Wis. 2d 43, ¶ 36. However, there is a second aspect to forfeiture: doing something incompatible with the assertion of a right. ... State v. Vaughn, 2012 WI App 129, ¶ 21, 344 Wis. 2d 764, 823 N.W.2d 543 (citing Allen, 397 U.S. at 343).
¶ 56. As previously noted, we have held that the right to testify is subject to waiver, not forfeiture, in so far as a defendants inaction in asserting the right is concerned. Weed, 263 Wis. 2d 434, ¶¶ 39-40. We now conclude that the right to testify may, in appropriate cases, be subject to forfeiture where conduct incompatible with the assertion of the right is at issue.
¶ 57. Case law supports our position. In Allen, the issue was whether Allen forfeited his constitutional right to be present at trial by engaging in speech and conduct which [was] so noisy, disorderly, and disruptive that it [was] exceedingly difficult or wholly impossible to carry on the trial. Allen, 397 U.S. at 338. At trial, Allen had requested to conduct his own defense. Id. at 339. During voir dire, Allen argued with the judge in a most abusive and disrespectful manner. Id. He later threatened the judge, tore up his appointed counsels legal files, and threw papers on the floor. Id. at 340. Despite warning, Allen did not reform his conduct, leading the circuit court to remove him from the courtroom on two separate occasions. Id. at 340-41.
¶ 58. The United States Supreme Court rejected the notion that Allens right to be present was so absolute that, no matter how unruly or disruptive [Allens] conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did. Id. at 342. The Court held:
[W]e explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.
It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining appropriate courtroom atmosphere will be best in all situations.
Id. at 343. Thus, Allen stands for the proposition that a defendant may forfeit a fundamental constitutional right through conduct incompatible with the assertion of the right.
¶ 59. In our view, the rationale of Allen logically extends to the context of the right to testify, given that a corollary to removal may be denial of that right. We are not alone in this opinion. See, e.g., United States v. Ives, 504 F.2d 935, 941 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944 (1975), opinion reinstated in relevant part, 547 F.2d 1100 (9th Cir. 1976) (holding that a defendant may forfeit the privilege to testify through conduct); Douglas v. State, 214 P.3d 312, 322 (Alaska 2009) (applying the Allen standards to determine whether the defendant forfeited his right to testify in person through misconduct); State v. Chappie, 36 P.3d 1025, 1033-34 (Wash. 2001) (relying on Allen and Ives to determine whether the defendant lost his right to testify by way of his conduct). We agree with the reasoning of the United States Court of Appeals for the Ninth Circuit:
It is evident that the conduct of a defendant in the courtroom can become so inconsistent with the necessary decorum for effective administration of justice that reasonable restraints are necessary. It is even more evident that such conduct cannot be allowed when the defendant takes center stage on the witness stand. He has no more liberty and freedom to testify in a way degrading to the judicial system than he has to rob a bank. . . .
Ives, 504 F.2d at 941.
¶ 60. Although the United States Supreme Court has not expressly stated that a defendant may forfeit the right to testify through conduct, it seems probable that it would reach such a conclusion in light of Allen and its indication in Rock that the right to testify is subject to legitimate interests in the criminal trial process. Surely, the preservation of dignity, order, and decorum in the courtroom constitutes a legitimate interest in the criminal trial process that may outweigh a defendants right to testify in certain circumstances.
¶ 61. While we have not addressed the forfeiture by conduct issue in the context of the right to testify, we have held that a criminal defendant may forfeit his or her constitutional right to counsel through manipulative or disruptive conduct. Cummings, 199 Wis. 2d at 752-56; accord United States v. Leggett, 162 F.3d 237, 250 (3d Cir. 1998); United States v. McLeod, 53 F.3d 322, 324-25 (11th Cir. 1995); United States v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992). In Cummings, the defendant repeatedly refused to cooperate with various court-appointed attorneys, constantly complained about the attorneys performance, and made it impossible for an attorney to effectively represent him. Cummings, 199 Wis. 2d at 753-54. We held that there may be situations, such as the one before us, where a circuit court must have the ability to find that a defendant has forfeited his right to counsel. Id. at 756.
1 62. In a footnote to Cummings, we recommended that trial courts in the future, when faced with a recalcitrant defendant, follow the first four steps outlined in the dissent before determining that a defendant has forfeited his or her right to counsel. Id. at 756 n.18. Those four steps, designed to ensure that a defendant understands the consequences of his or her actions, are:
(1) explicit warnings that, if the defendant persists in X [specific conduct], the court will find that the right to counsel has been forfeited and will require the defendant to proceed to trial pro se; (2) a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; (3) a clear ruling when the court deems the right to counsel to have been forfeited; [and] (4) factual findings to support the courts ruling... .
Id. at 764 (Geske, J., dissenting). Thus, Cummings not only demonstrates that a defendant may forfeit a fundamental constitutional right through conduct incompatible with the assertion of the right, it provides guidance to circuit courts faced with making such a determination.
¶ 63. Since Cummings, the court of appeals has held that criminal defendants may, through their conduct, forfeit their right to an on-the-record colloquy designed to ensure that their decision not to testify is a knowing and voluntary one. Vaughn, 344 Wis. 2d 764, ¶ 26. Citing Allen, 397 U.S. at 343, the court of appeals explained:
As we have seen, however, a defendant in a criminal case may lose fundamental rights (such as the right to appear at the trial and confront the accusers) when the defendant forfeits those rights by interfering with the ability of the trial court to protect those rights. ... By refusing to come to court so the trial court could personally explain what Weed requires must be explained, Vaughn made it, as a practical matter consistent with safety, impossible for the trial court to explain his right to testify, and determine whether his decision to not testify was, in Weeds phrase, knowing, intelligent, and voluntary.
Id. (internal citations omitted).
¶ 64. The foregoing case law demonstrates that forfeiture by conduct is not a novel concept, even where fundamental constitutional rights are concerned. In light of that case law, and in light of the United States Supreme Courts declaration that the right to testify may bow to accommodate other legitimate interests in the criminal trial process, Rock, 483 U.S. at 55 (quoting Chambers, 410 U.S. at 295), we conclude that a criminal defendant may forfeit his or her right to testify through conduct incompatible with the assertion of the right in appropriate cases. However, we stress that a circuit courts determination on forfeiture must be guided by Rocks balancing test. Thus, a forfeiture determination may not be arbitrary or disproportionate to the purposes it is designed to serve. Rock, 483 U.S. at 56. Stated differently, a complete denial of the right to testify must be reasonable under the circumstances of the case.
C. Anthony Forfeited his Right to Testify
¶ 65. Having established that a criminal defendant may forfeit his or her right to testify through conduct incompatible with the assertion of the right, we proceed to consider whether Anthony forfeited his right to testify in his own defense.
¶ 66. Anthony argues that the circuit court erred in its forfeiture determination. He submits that the circuit court went where no court has gone before: denying a criminal defendant the right to testify where his conduct did not first warrant removal from the courtroom. Painting this case exclusively as a disruption case under Allen, Anthony contends that there is no precedent for stripping a defendant of his right to testify based on disruptive behavior when he was never so disruptive as to render it impossible to carry on the trial in his presence. In his view, the circuit courts decision in this case amounted to nothing more than a protective measure based on the circuit courts fear that Anthony may become disruptive. Anthony maintains that there is no basis in existing law for such a preemptive application of Allen.
¶ 67. Anthony recognizes that Rock permits reasonable limitations on the right to testify where legitimate interests in the criminal trial process are concerned. However, he argues that the Rock balancing test weighs in his favor. In asserting that the circuit courts forfeiture determination was arbitrary or disproportionate to the purposes it was designed to serve, Anthony questions whether legitimate interests in the criminal trial process were really at issue. As to the preservation of courtroom decorum, Anthony contends that there is no authority to support the proposition that [the right to testify] can be circumscribed by principles of decorum. Regarding the interest in maintaining order in the courtroom, Anthony argues that the circuit courts concern for the jurys safety may have arisen post hoc. As for the circuit courts interest in controlling the presentation of evidence, Anthony submits that he never indicated that he would testify in anything but a truthful and relevant manner.
¶ 68. In sum, according to Anthony, the complete denial of his right to testify was a far too severe punishment for [his] minor disruption and dissent, particularly in light of the fact that he planned to serve as the sole eyewitness in support of his self-defense theory.
¶ 69. The State contends that Anthony forfeited his right to testify by refusing to comply with the circuit courts evidentiary ruling and posing a threat to the preservation of dignity, order, and decorum in the courtroom. The State disagrees with Anthonys assertion that a circuit court can only bar a defendant from testifying where his or her conduct warrants removal from the courtroom. According to the State, a denial of the right to be present at trial is a more extreme sanction than denial of the right to testify because removal from the courtroom infringes upon several rights: the right to confrontation, the right to conduct a defense, and the right to appear before a jury. Thus, per the States reasoning, it is illogical to require the same level of misconduct to justify the denial of both rights.
1 70. The State acknowledges an absence of case law directly addressing the issue before the court; however, it contends that cases dealing with forfeiture of a defendants right to counsel through conduct inconsistent with the assertion of the right are more persuasive than the disruption type cases that Anthony offers. See, e.g., Cummings, 199 Wis. 2d at 752-56; United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995) (recognizing that a defendant can forfeit or waive by conduct his or her right to counsel through dilatory tactics). Specifically, the State argues [i]f a defendant can be found to have forfeited or waived by conduct the right to counsel without an explicit waiver and absent any violent behavior, it logically follows that a defendant can also be found to have forfeited his right to testify without engaging in behavior that merits removal from the courtroom.
¶ 71. Recognizing that Rock sets forth the appropriate test for determining the propriety of a circuit courts decision concerning forfeiture of the right to testify, the State asserts that the circuit courts interests in controlling the presentation of the evidence and preserving dignity, order, and decorum in the courtroom justified the complete denial of Anthonys right to testify.
¶ 72. We agree with the State and hold that Anthony forfeited his right to testify by displaying stubborn and defiant conduct that presented a serious threat to both the fairness and reliability of the criminal trial process as well as the preservation of dignity, order, and decorum in the courtroom.
¶ 73. As a preliminary matter, we concur with the State that a circuit court need not remove a defendant from the courtroom in order to justify a denial of the right to testify. The cases that we have cited for the proposition that a defendant may forfeit a constitutional right through conduct do not exclusively involve the type of violent and disruptive behavior that may necessitate removal from the courtroom. See, e.g., Cummings, 199 Wis. 2d at 752-56; See also Taylor v. United States, 414 U.S. 17, 20 (1973) (holding that the defendant waived or forfeited his constitutional right to be present through his voluntary absence). Therefore, when determining whether a defendant forfeited his or her right to testify through conduct, we believe the appropriate inquiry is to consider the totality of the circumstances in order to assess whether the defendant interfered with the circuit courts ability to protect that right. We reiterate that such an inquiry must be guided by Rocks balancing test — the forfeiture determination must not be arbitrary or disproportionate to the purposes it is designed to serve. In other words, a complete denial of the right to testify must be reasonable under .the circumstances of the case.
¶ 74. In this case, we recognize two distinct interests that formed the basis of the circuit courts complete denial of Anthonys right to testify. Both constitute legitimate interests in the criminal trial process.
¶ 75. The first involves the circuit courts ability to control the presentation of evidence so as to ensure the fairness and reliability of the criminal trial process. The primary purpose of a criminal trial is to develop relevant facts on which a determination of guilt or innocence can be made. United States u. Nobles, 422 U.S. 225, 230 (1975); See also State v. McClaren, 2009 WI 69, ¶ 5, 318 Wis. 2d 739, 767 N.W.2d 550 (Ascertainment of the truth is the primary objective of a trial. . . .). Efficiency is a secondary objective of a trial, but where it can be attained with constitutionally permitted measures, it is highly desirable. McClaren, 318 Wis. 2d 739, ¶ 5.
f 76. Under Wis. Stat. § 906.11, circuit courts are charged with serving these two purposes. The statute provides, in relevant part:
(1) Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.
Wis. Stat. § 906.11(1). We have held that Wis. Stat. § 906.11 enables a circuit court to try to be certain that a jury is presented with admissible, reliable evidence and to make pretrial rulings so that the trial runs smoothly. McClaren, 318 Wis. 2d 739, ¶ 3. Indeed, the trial process requires as much:
The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponents case. The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses testimony.
Taylor v. Illinois, 484 U.S. 400, 410-411 (1988).
¶ 77. It is clear from our review of the record that Anthonys proposed testimony likely would have confused or misled the jury, thereby presenting an obstacle to the ascertainment of truth. As the circuit court acknowledged, the jury had a difficult decision to make, and irrelevant matters such as Anthonys alleged wrongful conviction; Anthonys status as an African-American male; Anthonys religious beliefs; and Anthonys memories all the way back to when [he] was five years old would not have helped the jury make its decision.
¶ 78. To take but one example, if Anthony had been allowed to testify about his alleged wrongful conviction, it is possible that the State would have felt compelled to prove that Anthonys conviction was never overturned and may have been completely legitimate. In other words, the issue of Anthonys purported wrongful conviction had the obvious potential to develop into a trial within a trial, thereby confusing the jury as to the issues it was required to decide, or worse, misleading the jury into thinking that it could determine Anthonys guilt or innocence in this case based on the likelihood that he was wrongfully convicted of armed robbery in 1966. To further complicate matters, the trial within a trial likely would have constituted a needless consumption of time.
¶ 79. Where, as here, a defendant repeatedly promises to disobey a circuit courts evidentiary ruling, the effect of which would seriously threaten the fairness and reliability of the criminal trial process, we think it fair to say that a circuit court has a legitimate interest in placing reasonable limitations on a defendants right to testify. See Chambers, 410 U.S. at 302 (In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.); See also Holmes v. South Carolina, 547 U.S. 319, 327 (2006) (While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.).
¶ 80. The second distinct interest underlying the circuit courts forfeiture determination concerned the preservation of dignity, order, and decorum in the courtroom. In our view, the record is clear that Anthony posed a serious threat to that legitimate interest in the criminal trial process as well.
¶ 81. The circuit court made findings of fact with respect to Anthonys demeanor at trial, both in its oral decision and its written decision post-conviction, and we defer to them unless they are clearly erroneous. Ndina, 315 Wis. 2d 653, ¶ 45. The circuit court observed that Anthony was quite animated when insisting to testify to irrelevant matters, i.e., he was speaking very forcefully with a good deal of anger in his voice. The circuit court noted how enraged and tensely coiled Anthony became and how close he seemed to a breaking point. Based on Anthonys demeanor, the circuit court expressed concern that Anthony would cause a ruckus on the stand and pose a threat to the security of the jury.
¶ 82. The circuit courts observations are supported by other portions of the record. For example, the record shows that Anthony threatened that he would need to be carried out of the courtroom if he could not testify freely. At some point, additional sheriffs deputies were called into the courtroom, bringing the total present to eight. Toward the end of the circuit courts discussion with Anthony, the sheriffs office requested that Anthony wear a stun belt for the remainder of the trial. Also, at Anthonys sentencing, the circuit court noted the presence of additional sheriffs deputies because of that [one] incident in my court where you couldnt contain your rage, and thats what Im concerned about.
¶ 83. Where, as here, a defendant displays such disruptive conduct, we find it rational to conclude that a circuit court has a legitimate interest in placing reasonable limitations on the right to testify.
¶ 84. Having identified two legitimate interests that warranted the imposition of reasonable limitations on Anthonys right to testify, the question remains whether the circuit courts complete denial of that right was in fact reasonable under the circumstances. Stated differently, we consider whether the circuit courts forfeiture determination was arbitrary or disproportionate to the purposes it was designed to serve.
¶ 85. The circuit courts complete denial of Anthonys right to testify was reasonable in light of the totality of the circumstances in this case. Though we do not wish to diminish the importance of Anthonys self-defense testimony, which was certainly relevant to the charged offense, we cannot condone Anthonys blatant disrespect for the criminal trial process. To do so would seriously jeopardize a circuit courts ability to fulfill its constitutionally or legislatively mandated obligations, including those imposed by Wis. Stat. § 906.11.
¶ 86. The United States Supreme Court has stated countless times that adherence to rules of evidence and procedure is essential to the proper functioning of our criminal trial process. See, e.g., Chambers, 410 U.S. at 302; Rock, 483 U.S. at 55 n.11; Taylor, 484 U.S. at 410-411. That numerous rules controlling the presentation of evidence do not offend the defendants right to testify is a sure indication that a circuit courts interest in effectuating the ascertainment of truth is tantamount to the constitutional right to testify By repeatedly refusing to comply with the circuit courts instruction not to discuss irrelevant matters before the jury, Anthony gave the circuit court little choice but to completely deny his right to testify for fear of compromising the primary purpose of the criminal trial process.
¶ 87. In light of this conduct alone, we would be hard pressed not to conclude that Anthony forfeited his right to testify. But Anthonys conduct did not stop there. The more Anthony insisted on disregarding the circuit courts evidentiary ruling, the more disruptive and enraged he became, to the point where the circuit court legitimately believed that Anthony posed a threat to the orderliness of the courtroom, including the security of the jurors. We think the United States Supreme Court was clear when it stated that such a flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. Allen, 397 U.S. at 343.
¶ 88. We are mindful, as was the circuit court, that courts must indulge every reasonable presumption against the loss of constitutional rights. ... Id. In its post-conviction written decision, the circuit court explained that it considered less restrictive alternatives to forfeiture. For example, it considered permitting Anthony to provide irrelevant testimony and later instructing the jury to ignore it. However, it noted that such an approach would condone disrespect for the courts rulings. In addition, it might have provoked a disturbance once Anthony witnessed the circuit court nullifying his attempt to sway the jury.
¶ 89. That Anthony was likely to erupt at the provision of a limiting instruction is clear from the record; thus, we find it reasonable to conclude that a limiting instruction would not have minimized a significant risk presented by Anthonys testimony. Moreover, while we presume that juries follow properly given jury instructions, State v. Marinez, 2011 WI 12, ¶ 41, 331 Wis. 2d 568, 797 N.W.2d 399, we note that a jury instruction in this case would not have solved a separate problem created by Anthonys unfettered testimony: a needless consumption of time.
¶ 90. The circuit court considered at least one other alternative to forfeiture. It explained that it could have put Anthony on the stand and directed his attorney not to broach the subject of Anthonys prior convictions. However, the circuit court identified the obvious flaw in that approach. Given Anthonys determination to testify freely, he likely would have found a way to raise irrelevant matters on his own, thereby creating the potential for a substantial disturbance once the circuit court intervened.
¶ 91. As the United States Supreme Court explained in Allen, [n]o one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. Id. Indeed, the Court stressed that trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. Id. We read this statement as a caution against the type of Monday-morning quarterbacking that may arise on appellate review of these situations.
¶ 92. Importantly, the Court in Allen upheld the circuit courts forfeiture determination despite the fact that there were other coercive measures that could have been used with the defendant. Id. at 344-46. The Court found significance in the fact that the defendant was both warned of the potential consequences of his actions and given the opportunity to participate at trial if he reformed his conduct. Id. at 346.
¶ 93. Of course, that is exactly what happened in this case. The circuit court warned Anthony on several occasions that he would not be allowed to testify if he continued his misbehavior. The circuit court also provided Anthony with multiple opportunities to reform his conduct.
¶ 94. Under these circumstances, the circuit court was not required to put Anthony on the stand and wait for the fireworks. The criminal trial process deserves better.
¶ 95. Therefore, we conclude that Anthony forfeited his right to testify by exhibiting stubborn and defiant conduct that posed a serious threat to the both the fairness and reliability of the criminal trial process and the preservation of dignity, order, and decorum in the courtroom.
D. Harmless Error
¶ 96. Although we conclude that there was no error in this case, we wish to take the opportunity to confirm that a violation of a criminal defendants right to testify to relevant evidence is subject to harmless error analysis. Nelson, 355 Wis. 2d 722, ¶¶ 32-33. Even if we assumed error in this case, we would conclude that the error was harmless beyond a reasonable doubt given the overwhelming evidence of Anthonys guilt.
¶ 97. Despite our recent decision in Nelson, Anthony contends that a violation of the right to testify is a structural error and thus not subject to harmless error analysis where a defendant wishes to testify about relevant matters. He argues that our decision in Nelson is confined to situations where a defendant wishes to testify about irrelevant matters. Anthony reasons that a violation of a defendants right to testify about relevant evidence is a separate and more pervasive error than denying a defendant the ability to testify as to irrelevant matters. According to Anthony, this is because there is no constitutional right to testify to irrelevant evidence, United States v. Sheffer, 523 U.S. 303, 308 (1998), whereas there is a constitutional right to testify to relevant evidence. Rock, 483 U.S. at 55.
¶ 98. Alternatively, Anthony argues that if harmless error review applies to a violation of a defendants right to testify to relevant evidence, any error here was not harmless beyond a reasonable doubt. Specifically, Anthony submits: [b]ecause [he] was prevented from mounting any defense at all against the States allegations, it cannot be shown beyond a reasonable doubt that his testimony could not have presented some jury question as to whether he intended to kill S.J. or was defending himself. ... To support his position, he maintains that he would have testified that he killed S.J. in self-defense, as S.J. was high on crack cocaine on the night in question and therefore attacked him. He also would have testified that he fled the scene of the crime because he has a special fear of police.
1 99. The State argues that a violation of the right to testify is subject to harmless error analysis regardless whether the excluded testimony is relevant. It points out that there is no qualifying language in Nelson supporting Anthonys narrow reading of the decision. The State maintains that the relevance or irrelevance of a defendants proposed testimony should not affect the threshold determination of whether a particular constitutional violation amounts to structural error; logically, it only factors into the harmless-error analysis. According to the State, a court can assess the effect that a wrongful exclusion of relevant evidence has on a trial outcome just as easily as it can with respect to the wrongful exclusion of irrelevant evidence.
¶ 100. Thus, according to the State, harmless error analysis is appropriate, and any error on the part of the circuit court in this case was harmless beyond a reasonable doubt given the overwhelming evidence of Anthonys guilt.
¶ 101. We agree with the State. First, a violation of a defendants right to testify to relevant evidence is subject to harmless error analysis. In Nelson, we explained without qualification that [a]n error denying the defendant of the right to testify on his or her own behalf bears the hallmark of a trial error. Nelson, 355 Wis. 2d 722, ¶ 32. Unlike structural errors, trial errors occur [] during presentation of the case to the jury and their effect may be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt. Id., ¶ 30 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006)). The fact that a defendants testimony may be significant to the issues in the case does not mean that its absence is incapable of assessment. Id., ¶ 33. Thus, we made clear in Nelson that a violation of the right to testify is subject to harmless error analysis irrespective of the testimonys relevance.
¶ 102. Second, even if we assumed that the circuit court erred in denying Anthony the right to testify, we would conclude that the error was harmless beyond a reasonable doubt. In Nelson, we explained that a reviewing court should consider the following factors in determining whether a denial of the right to testify was harmless beyond a reasonable doubt:
(1) the importance of the defendants testimony to the defense case; (2) the cumulative nature of the testimony; (3) the presence or absence of evidence corroborating or contradicting the defendant on material points; and (4) the overall strength of the prosecutions case.
Id., ¶ 46.
¶ 103. The first two factors weigh in Anthonys favor, as it is clear that Anthonys self-defense testimony was important to his defense, and no other witness could have provided that evidence. As a result, Anthony had no way to rebut the States allegation that he intentionally killed S.J.
¶ 104. However, the latter two factors clearly favor the State, and, in our view, tip the scales in support of harmless error. As we demonstrated at the outset of this decision, the evidence of Anthonys guilt was substantial. The majority of evidence presented at trial contradicted Anthonys self-defense theory, thereby contributing to the overall strength of the States case. The gruesome nature and extent of S.J.s injuries completely undermine Anthonys claim of self-defense. Moreover, at least three witnesses testified that Anthony threatened to kill S.J. with an ice pick, either on the day in question or two days earlier. In addition, one witness testified that Anthony admitted to stabbing S.J. forty to fifty times because he thought S.J. was cheating on him, not because he was acting in self-defense. The evidence also showed that S.J. was a sickly woman who suffered from rheumatoid arthritis, particularly in the hands, and that she was likely incapable of holding a knife.
¶ 105. Given the evidence before us, we are satisfied that any assumed error on the part of the circuit court was harmless beyond a reasonable doubt.
IV. Conclusion
¶ 106. Because the circuit courts forfeiture determination was not arbitrary or disproportionate to the purposes it was designed to serve, we hold that the circuit court did not err in denying Anthony the right to testify. Anthony forfeited his right to testify by displaying stubborn and defiant conduct that presented a serious threat to both the fairness and reliability of the criminal trial process and the preservation of dignity, order, and decorum in the courtroom.
¶ 107. Although we conclude that the circuit court did not err in refusing to allow Anthonys testimony, we further hold that, even if we assumed error, such error is subject to harmless error analysis. Given the overwhelming evidence of Anthonys guilt, the assumed error was harmless beyond a reasonable doubt.
¶ 108. Therefore, we affirm the decision of the court of appeals and uphold Anthonys conviction.
By the Court. — The decision of the court of appeals is affirmed.
Milwaukee County, the Honorable Richard J. Sankovitz, presiding.
According to the presentence investigation report (PSI), Anthonys conviction for armed robbery occurred on January 25, 1967. He was paroled on or about August 29, 1978.
No evidence in the record supports Anthonys contention that his conviction for armed robbery was wrongful.
Anthony is an African-American male.
See Rock v. Arkansas, 483 U.S. 44, 55-56 (1987) (stating that the right to testify is subject to reasonable limitations which are not arbitrary or disproportionate to the purposes they are designed to serve.).
The following facts are taken from witness testimony at trial.
Poulos defined defensive puncture wounds as those that one describes of the hands or forearms of someone who will be in a position to try to ward off a blow.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. Wis. Stat. § 940.01(l)(a) provides that whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
Wisconsin Stat. § 906.09(1) provides that [f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. .. . However, under Wis. Stat. § 906.09(2), such evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Milwaukee County, the Honorable Kevin E. Martens, presiding.
At the pretrial hearing, the State argued that four of Anthonys prior convictions were relevant for impeachment purposes. Those convictions dated back as far as 1996. However, the circuit court determined that only two of the four were relevant: two convictions for bail jumping in violation of Wis. Stat. 946.49(l)(a). Those convictions occurred in 2003.
Anthony described Anpu Aungk as my Egyptian protector, the high priest.
The discussion concerning Anthonys right to testify occurred outside the presence of the jury. At the conclusion of the discussion, a deputy from the Milwaukee County Sheriffs Office requested that Anthony wear a stun belt. The circuit court was concerned not about the timing of the stun belt but about the fact the jurys sitting now for an hour and 15 minutes without anything going on. Given that concern and the presence of eight sheriffs deputies in the courtroom, the circuit court declined to order Anthony to wear the stun belt. However, the circuit court did note that Anthony was speaking very forcefully with a good deal of anger in his voice.
At the sentencing hearing, the circuit court noted Anthonys evident inability to control his anger. The circuit court explained: Youre sitting there in a wheelchair with 1, 2, 3, 4, 5 extra deputies because of that [one] incident in my court where you couldnt contain your rage, and thats what Im concerned about.
To succeed on a claim for ineffective assistance of counsel, a defendant must demonstrate both that counsels performance was deficient and that it prejudiced the defense. State v. Carter, 2010 WI 40, ¶ 21, 324 Wis. 2d 640, 782 N.W2d 695 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove prejudice, a defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Id., ¶ 37 (quoting Strickland, 466 U.S. at 694).
State v. Anthony, No. 2013AP467 —CR, unpublished order (Wis. Ct. App. Jan. 14, 2014).
Post hoc is defined as [a]fter this; consequently. Blacks Law Dictionary 4 (7th ed. 1999).
Anthony suggests that these findings of fact, described in the circuit courts written decision post-conviction, were the product of a post hoc rationalization for the circuit courts forfeiture determination. However, we recently explained that taking judges at their word is a fundamental assumption built into our legal system. State v. Robinson, 2014 WI 35, ¶ 48, 354 Wis. 2d 351, 847 N.W.2d 352. In the absence of clear evidence to contrary, we decline to assign improper motive on the part of the circuit court. Id.
Contrary to Anthonys assertion, there is case law supporting the proposition that the right to testify can be circumscribed by principles of decorum. See, e.g., United States v. Ives, 504 F.2d 935, 941-46 (9th Cir. 1974), vacated on other grounds, 421 U.S. 944 (1975), opinion reinstated in relevant part, 547 F.2d 1100 (9th Cir. 1976).
Rock, 483 U.S. at 55 n.11.
Indeed, the United States Supreme Court in Rock appeared most concerned with the fact that the evidentiary rule at issue stripped the circuit court of its ability to control the presentation of evidence so as to facilitate the truth-seeking process. See id., 483 U.S. at 56-62.
The circuit court pointed out in its post-conviction written decision that the nearest juror sat eight feet away from the witness stand.
We note that Nelson has filed a petition for a writ of certiorari before the United States Supreme Court and that petition is currently pending review.
S.J.s purported crack cocaine use on the night in question was not included in Anthonys offer of proof regarding his anticipated trial testimony.
Structural errors defy analysis by harmless-error standards because they affec[t] the framework within which the trial proceeds, and are not simply . . . error[s] in the trial process itself. State v. Nelson, 2014 WI 70, ¶ 30, 355 Wis. 2d 722, 849 N.W.2d 317 (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)).
Majority op., ¶ 46.
