Momon v State
| Citation | 18 S.W.3d 152 |
| Decision Date | 15 November 1999 |
| Docket Number | 96-00007 |
| Parties | NAPOLEON MOMON, Appellant, v. STATE OF TENNESSEE, Appellee.IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED: |
| Court | Supreme Court of Tennessee |
HAMILTON CRIMINAL
For the Appellant:
Stephen M. Goldstein, Chattanooga, Tennessee
For the Appellee:
Paul G. Summers, Attorney General & Reporter
Michael E. Moore, Solicitor General
Daryl J. Brand, Associate Solicitor General, Nashville, Tennessee
William H. Cox, III, District Attorney General, 11th Judicial District
Rodney C. Strong, Assistant District Attorney, Chattanooga, Tennessee
(Post Conviction)
TRIAL COURT AND COURT OF CRIMINAL APPEALS REVERSED CASE REMANDED TO TRIAL COURT.
OPINION
The appellant, Napoleon Momon, requested permission to appeal from a decision of the Court of Criminal Appeals holding that he was not denied effective assistance of counsel when his trial counsel failed to allow him to testify at his own trial. After careful consideration, we find it unnecessary to reach the issue of whether the facts of this case give rise to a claim of ineffective assistance of counsel. Instead we hold that a criminal defendant's right to testify is a fundamental constitutional right guaranteed both by Article I, section 9 of the Tennessee Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution. As such, the right must be personally waived by the criminal defendant. In all cases tried or retried hereafter, trial courts should adhere to the procedural guidelines set forth herein to ensure that the defendant personally waives his or her right to testify. The appellant in this case was denied his fundamental right to testify when trial counsel unilaterally waived the right. Although the harmless error doctrine may be applied to a violation of the fundamental right to testify, the record on appeal before this Court has not been sufficiently developed to permit a determination of whether or not the error in this case is harmless beyond a reasonable doubt. Accordingly, we remand this case to the trial court for a hearing at which the State will bear the burden of demonstrating that the error was harmless beyond a reasonable doubt. If, however, the State fails to meet its burden, the trial court must vacate the appellant's conviction.
The appellant, Napoleon Momon, was indicted for first degree murder in the shooting death of his wife. During his first trial on June 5, 1991, the appellant testified in his own behalf to the effect that the shooting was accidental and occurred during the course of a close struggle between him and his wife during an argument. The State presented evidence showing that the shooting was in fact not accidental since the absence of gunshot particles and residue around the wound indicated that the bullet had been fired from a distance of two or more feet. No one else was present at the time of the shooting other than the appellant and his wife. Based on this evidence, the jury returned a verdict of not guilty on the charge of first degree murder, but it was unable to reach a verdict on the lesser included offense of second degree murder.
The appellant was retried on the second degree murder charge on October 3, 1991. The State apparently presented the same witnesses as it had in the first trial,1 but during the second trial, the defense rested without putting on any proof. Although the appellant had testified in his own behalf in the first trial, defense counsel decided that the appellant did not make a good witness, and counsel elected on his own not to have the appellant testify. The jury found the appellant guilty of second degree murder, and the trial court sentenced him, as a Range I offender, to serve twenty-five years in the Department of Correction. His conviction was affirmed by the Court of Criminal Appeals on direct appeal, and no appeal was taken to this court.
On August 17, 1995, the appellant filed a pro se petition for post-conviction relief alleging that he was denied effective assistance of counsel during his second trial. Both the appellant and his trial counsel testified at the post-conviction evidentiary hearing. The appellant testified that at the second trial, he and his counsel did not discuss either his right to testify or whether he should testify. Also, both the appellant and his counsel testified that counsel alone made the decision not to call the appellant as a witness, and counsel at no time consulted with the appellant in the decision. Counsel testified that he merely informed the appellant's son of the decision as they were entering the courtroom, and that his statements were intended "just more or less [for] passing on information" rather than for rendering any advice. The appellant is a paraplegic confined to a wheelchair, blind in one eye, and deaf. Because of these disabilities, his son acted as an interpreter for him throughout the proceedings and also acted as an intermediary between the appellant and his lawyer. Counsel's decision not to have the appellant testify was based on discussions that he had with two jurors after the first trial, who told him that they did not believe the appellant's testimony.
In its findings of fact, the trial court found that appellant's counsel made a unilateral decision not to call the appellant to the stand. However, the trial court determined that counsel's decision was one of trial strategy and therefore did not constitute ineffective assistance of counsel. On that basis, the trial court dismissed the petition.
On appeal, a majority of the Court of Criminal Appeals affirmed the decision of the trial court denying the appellant post-conviction relief. Although the intermediate court determined that the performance of the appellant's counsel was deficient and below an objective standard of reasonableness, the court concluded that the appellant failed to meet his burden of proving that counsel's performance was so serious as to call into question the outcome of the trial. The appellant now requests this Court to reverse the decision of the intermediate court finding that the appellant was not prejudiced by the deficient performance of his counsel, even though his counsel was ineffective and denied him a fundamental constitutional right.
To sustain his post-conviction petition, the appellant must prove his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Upon review, this Court will not reweigh or reevaluate the evidence. We give deference to questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence as they are resolved by the trial court. State v. Henley, 960 S.W.2d 572, 578 (Tenn. 1997). Furthermore, the findings of fact of the trial judge on a petition for post-conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence in the record preponderates against those findings. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
The appellant contends that the Court of Criminal Appeals erred in affirming the trial court's denial of post-conviction relief. He argues specifically that he was denied the effective assistance of counsel when his counsel interfered with his constitutional right to testify. In our analysis of this case, however, we need not reach the Sixth Amendment issue of whether the appellant's counsel was ineffective in failing to advise and consult his client concerning his client's right to testify at the second trial. We conclude that the appellant has been plainly denied his right to testify in his own behalf which is guaranteed by Article I, section 9 of the Tennessee Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
While this Court will not ordinarily consider issues that are not raised by the parties, "[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings." State v. Manning, 500 S.W.2d 913, 914 (Tenn. 1973) (citation omitted); see also State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984); Tenn. R. Crim. P. 52(b); Tenn. R. App. P. 13(b). That the appellant was denied an opportunity to testify in his own behalf is plain and obvious, and we elect to address this issue to protect the appellant's constitutional rights and to prevent manifest injustice. See Tenn. R. Crim. P. 52(b).
It is now a well established principle in both state and federal law that a criminal defendant has a constitutional right to testify at trial. See State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); Campbell v. State, 469 S.W.2d 506, 509 (Tenn. Crim. App. 1971); see also Rock v. Arkansas, 483 U.S. 44, 49-52 (1987); Harris v. New York, 401 U.S. 222, 225 (1971). At common law, criminal defendants did not enjoy the right to testify in part because it was believed that a defendant's interest in the trial made such testimony unreliable.1 Although defendants were not allowed to be sworn as witnesses, the common law did permit a criminal defendant in a jury trial to plead his or her cause before the jury in an unsworn statement, and the defendant was often even expected to make an exculpatory statement before the court. See Reed Harvey, Waiver of the Criminal Defendant's Right to Testify: Constitutional Implications, 60 Fordham L. Rev. 175, 177-78 & n.25 (1991).
The right of a criminal defendant to speak in his or her own behalf is so important in Tennessee that the right has been...
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