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State v. Lotches12/29/2000
the trial court, having had the opportunity to observe Robotham's demeanor and to listen to the tone of his answers, was in the best position to determine whether Robotham would be able to be a fair and impartial juror. The trial court concluded that Robotham's strong opposition to the death penalty would prevent him from following the court's instructions, notwithstanding his firm and sincere commitment to try to do so. As our recitation of the record shows, there was evidence to support the trial court's conclusion. We find no error.
V. DEFENDANT'S RIGHT TO TESTIFY
Defendant contends that the trial court denied him his constitutional right to testify on his own behalf and, accordingly, that he is entitled to a reversal of his convictions. A brief recitation of the facts pertinent to the resolution of this issue is helpful.
During the trial, defendant advised the court several times that he wished to testify. Nonetheless, the question as to the circumstances under which and the effect to which defendant would testify was a frequent subject of discussion among the lawyers, defendant, and the court. On one such occasion toward the end of the defense case (May 27, 1993), one of defendant's lawyers informed the court that defendant wished to testify before one of the psychiatric witnesses was called to the stand. Defendant's other lawyer also advised the court that defendant wished to testify that day, and defendant himself so advised the court. The trial court replied that, because of their travel schedules, two psychiatric witnesses would testify that day instead and that defendant could testify "tomorrow or next week or whenever." Later that day, defendant reiterated, "I do state here that I do want to take the witness stand though." At the conclusion of the psychiatric testimony, court adjourned until June 7, 1993.
On June 7, 1993, the court heard testimony from three witnesses for the defense and one witness for the prosecution. Defendant did not state that day his intention to testify. The next day, June 8, 1993, after testimony from one defense witness, the court called a recess. Then, in open court, outside the presence of the jury but in front of defendant, the prosecutor, the court, and defense counsel engaged in an extended discussion concerning the defense's intention to rest its case. Defense counsel informed the court that it intended to rest its case with the proviso that it might still call a certain witness for surrebuttal. Neither defendant nor his counsel stated on the record or otherwise suggested in any manner that defendant still wished to testify. When the jury was called back into the courtroom, the trial judge informed the jury, in front of defendant, that the defense had rested its case. Again, defendant remained silent.
The prosecution proceeded with rebuttal witnesses. At the conclusion of that testimony, the state advised the court that it had two remaining witnesses for the next morning. Still, defendant said nothing about testifying, and the court adjourned.
The next morning, June 9, 1993, the court and the parties addressed some procedural matters, the state called its last two witnesses, and the state rested. At no time during the foregoing did defendant mention wanting to testify. After the state rested its case, defense counsel advised the court about a possible surrebuttal witness. Neither defense counsel nor defendant said anything about testifying. After a brief recess, the defense recalled one of its psychiatric witnesses for a brief surrebuttal. After that witness was finished, defense counsel advised the court that defendant "may want to testify."
At that point, the trial court and defenda
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