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State v. Lotches12/29/2000
d by counsel.See, e.g.,Jones v. Barnes, 463 US 745, 751, 103 S Ct 3308, 77 L Ed 2d 987 (1983) (defendant has the "ultimate authority to make certain fundamental decisions regarding the case, as to whether to * * * testify in his or her own behalf"). Because of the apparent conflict between defendant and his lawyers concerning the matter, defendant argues, the trial court had a duty to conduct a hearing to determine whether defendant in fact wished to exercise his right to testify or whether defendant instead acceded to his counsel's advice not to testify. According to defendant, the trial court's failure to conduct such a hearing constitutes reversible error. Defendant also contends that, even if he were found to have waived his right to testify at the time when his lawyer rested the defense case, the trial court abused its discretion and denied defendant due process of law when it failed to allow him to reopen his case so that his testimony could be received.
The state, in response, agrees with defendant that a defendant has the right to testify on his own behalf in a criminal prosecution and that the right is personal to the defendant, but it argues that the colloquies summarized above establish that, as a factual matter, defendant, with the assistance and knowledge of counsel, knowingly and voluntarily waived his right to testify.
After reviewing the record, we agree with the state that the trial court was entitled to conclude that defendant had waived his right to testify in his own behalf at the close of the defense case. Although it is true that, at various times, defendant had expressed a desire to testify, he remained silent at all critical moments when his lawyers and the court discussed resting the defense case. Given defendant's loquacious participation in earlier discussions on the topic, his silence at that moment spoke volumes. Defendant does not argue that trial courts have an affirmative duty to determine whether a silent defendant has knowingly and intentionally waived his constitutional right to testify. Indeed, defendant concedes that the courts do not have such a duty.Accordingly, when defendant's counsel rested the case in open court, without calling defendant to testify or notifying the court of his desire in that regard, the trial court was permitted to assume that defendant and his lawyers mutually had decided that defendant would not testify.
That defendant now insists that he had not meant to waive his right to testify does not alter that conclusion. This is not a proper forum for an inquiry into the content of defendant's private conversations with his lawyers or whether the lawyers actually were acting in accordance with defendant's wishes. Such questions are more appropriately addressed, if at all, in a future post-conviction proceeding. We consider the facts as they appeared to the court at the time when the defense rested. Because defendant remained mute while his lawyers rested the defense case, the court was entitled to assume and, as is apparent from the court's remarks, did in fact assume that defendant acquiesced in his lawyers' actions.
Additionally, the record does not support defendant's assertion that the trial court separately denied defendant the right to reopen the case so that his testimony could be received. It is apparent from the trial court's remarks to defendant on the second-to-last day of the trial that defendant would have been permitted to testify the next day if he had been willing to follow the rules of evidence. Defendant conferred with his lawyers on the matter and defendant's lead counsel informed the court that defendant "does inform me that he has said to the court what he's wished to say to the court, and that h
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