State v. Lotches12/29/2000
tify to anything that pertained to my life, you know, especially before this jury, because right now my life is at stake, and I think if my life is at stake here, then I should be able to convey to the jury everything that has taken place within my life, everything that has happened to me."
The court, defendant, and his lawyers again engaged in a lengthy exchange in which defendant continued to assert, and the court to deny, that defendant had been misled into waiting to testify on his own behalf. During that discussion, the state asserted that defendant should have to make an "offer of proof" as to the content of his testimony. In response, defendant simply reasserted his constitutional right to "tell their side of the story." At no time during that discussion did defendant indicate a willingness to testify subject to the rules of evidence.
At the conclusion of that exchange, defense counsel conferred off the record with defendant. Then defense counsel advised the court, in defendant's presence, that, under the circumstances,i.e, considering the topics that defendant wanted to address, the fact that his testimony would be limited by the rules of evidence and subject to the prosecution's cross-examination, and his lawyers' advice not to testify, defendant had elected not to testify and not to make an offer of proof. Defendant's lead lawyer stated:
"Your Honor, I've just spoken with [defendant]. I did advise him that if he wished to take the witness stand, make an offer of proof on what it is that he would like to say, and in spending some time with him last night, I think we spent about an hour, hour and a half, you know, talking with him, essentially what he would intend to say would be to basically give a rendition of his entire life through and up to the 22nd of August. And as I indicated to [defendant] last night, and I indicated to him just now this morning, that would certainly open up all of these areas for [the prosecutors] to cross-examine on.
"I also explained to [defendant] that he would be under the rules, particularly whenever we talk about the Evidence Code, Rule 403, relevancy, he'd also be under some restrictions. He couldn't talk about what other people said, because those would be hearsay statements, so he would be under the same rules as any other witness.
"I believe he does understand that, and I also pointed out to [defendant] that if he did choose to take the witness stand, while I would have to, as his lawyer and advocate, attempt to ask him questions to lead him through the testimony, he would certainly be doing so against my advice, and against the advice of my co-counsel * * *.
"That all being said, [defendant] does inform me that he has said to the court what he's wished to say to the court, and that he has nothing further to say to the court.
"And so with that, I would at this time formally close the defense case, except for our motions."
Defendant added nothing further on the subject and the court submitted the case to the jury without any further evidence.
Defendant contends that the foregoing colloquies between himself, his lawyers, and the court establish that he repeatedly and unequivocally informed the court that it was his wish to testify in his own defense, that he never waived the right to testify, that defense counsel unilaterally rested the defense case before defendant had the opportunity to testify, and that he "protested his attorney's actions on the record." Defendant argues that the state and federal constitutions guarantee him the right to testify in his own defenseand that the law is clear that that right is personal to the defendant and cannot be waive
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