Quarels v. Com.

• Decision Date: 26 August 2004
• Docket Number: No. 2002-SC-0289-MR.,2002-SC-0289-MR.
• Citation: 142 S.W.3d 73
• Parties: Tina M. QUARELS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

142 S.W.3d 73

Tina M. QUARELS, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0289-MR.

Supreme Court of Kentucky.

August 26, 2004.

Appeal from the Circuit Court, Jefferson County, Judith E. McDonald-Burkman, J Donna L. Boyce, Assistant Public Advocate, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Wm. Robert Long, Jr., Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice STUMBO.

Appellant was sentenced to life imprisonment without the possibility of parole after being convicted of aggravated murder, first-degree arson, and two counts of criminal attempt to commit murder. On November 29, 1998, Appellant gathered her three children, ages 2, 5, and 6 years old, put them in the bed with her, doused the room in lighter fluid and set the bed on fire. All escaped except 2-year-old Ju'monie, who died of smoke inhalation. Appellant alleges numerous issues on appeal, but because this Court believes Appellant was erroneously denied the right to testify on her own behalf, we reverse Appellant's conviction and remand for a new trial. Accordingly, we will only address those issues likely to recur on retrial.

DENIAL OF RIGHT TO TESTIFY

Prior to trial, Appellant made repeated emotional outbursts and became hysterical and disruptive. After defense counsel advised the court that attorney/client communications had completely broken down, the court found that Appellant was unable to continue in her present state and ordered a competency evaluation at Kentucky Correctional Psychiatric Center (KCPC). The result was a mistrial, and Appellant's second trial did not begin until nearly a year later. KCPC eventually reported to the court that Appellant was competent to stand trial.

When the second trial began, all parties agreed that Appellant's competency was no longer an issue. Appellant continued to have outbursts throughout the trial and was forcibly removed from the courtroom on at least one occasion. Appellant stated numerous times before the court (and at least one time in front of the jury), her desire to testify on her own behalf. At the close of the defense's case, defense counsel informed the court that Appellant still wished to testify, against counsel's advice, and requested an ex parte hearing to resolve the matter. Defense counsel made a motion for the trial court to make a determination that Appellant did not appreciate the consequences of taking the stand, and asked that the court prevent her from doing so. Defense counsel advised the court that in a situation such as this, Jacobs v. Commonwealth, Ky., 870 S.W.2d 412 (1994), holds that the trial court is to make a determination whether Appellant is capable of intelligently directing her own defense by making the decision to testify on her own behalf. The trial court questioned Appellant extensively and strenuously suggested to Appellant that she change her mind. Appellant continually reasserted her desire to testify, stating that she would not be able to live with herself unless she told the truth. However, the trial court ultimately found that it would be extremely detrimental to Appellant's defense if she were to testify in front of the jury based on her prior outbursts and inability to control her emotions. After hearing the court's ruling, Appellant stated that she wished to fire her attorneys and represent herself so that she could take the stand. Appellant asked the court how it could deny her her constitutional rights.

In Jacobs, this Court held that if a trial court has questions about whether a defendant is "mentally sufficient" to waive the insanity defense — even though he or she has been found competent to stand trial — the trial court must determine if the defendant is capable of voluntarily and intelligently waiving the defense. Id. at 418. If the defendant is found incapable of waiving such defense, defense counsel is entitled to proceed with the defense, despite the defendant's protests, if his or her professional judgment and the evidence permit. Id. The Commonwealth urges us to apply the reasoning of Jacobs, first articulated in Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989) (overruled on other grounds, Caudill v. Commonwealth, Ky., 120 S.W.3d 635 (2003)), to the present situation where a defendant asserts the right to testify on his or her own behalf. We decline to do so, and find that the holding of Jacobs and Dean should be limited to a defendant's decision to assert or forego a particular defense.

Our case law is replete with references to a defendant's right to testify at trial being a personal and constitutional right only to be knowingly and intelligently waived. See Watkins v. Commonwealth, Ky., 105 S.W.3d 449, 453 (2003); Crawley v. Commonwealth, Ky., 107 S.W.3d 197, 199 (2003). In Crawley, we adopted the Third Circuit's reasoning in United States v. Pennycooke, 65 F.3d 9 (3rd Cir.1995), that a trial court has a duty to inquire into a disagreement between a defendant and defense counsel regarding the defendant's right to testify if it has reason to believe that a defendant's rights have been wrongly suppressed. Id. In Crawley, we held that the trial court's failure to conduct such an inquiry was reversible error. Id. We did not reach the issue of what role, if any, the trial court should play in determining if testifying on one's own behalf would be detrimental to the defense, nor did we discuss the consequences of the trial court's absolute refusal to allow the defendant to take the stand after having found that the defendant was not competent to direct her own defense.

A number of federal jurisdictions have held that a defendant's right to testify at trial generally cannot be waived by defense counsel as a matter of trial strategy against a defendant's wishes. See United States v. Joelson, 7 F.3d 174 (9th Cir.1993) (upholding conviction after trial court encouraged defendant to follow attorney's advice by not testifying and defendant presumably assented by not objecting further); United States v. Curtis, 742 F.2d 1070 (7th Cir.1984) (nonetheless upholding conviction where counsel refused to put defendant on stand because it was clear that defendant would have perjured himself).

Likewise, the Sixth Circuit has held that the decision of whether or not to testify ultimately lies with the defendant. United States v. Webber, 208 F.3d 545, 550-551 (6th Cir.2000).

The right to testify is personal to the defendant, may be relinquished only by the defendant, and the defendant's relinquishment of the right must be knowing and intentional. The defense counsel's role is to advise the defendant whether or not the defendant should take the stand, but it is for the defendant, ultimately, to decide.

Id. (Citations omitted). "A defendant who wants to testify can reject defense counsel's advice to the contrary by insisting on testifying, communicating with the trial court, or discharging counsel." Id. at 551.

We agree with the reasoning of the Sixth Circuit that the decision to testify in one's own defense is of such importance that the ultimate decision must be left to the defendant himself. "And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of `that respect for the individual which is the lifeblood of the law.'" Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (quoting Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)).

A defendant's right to testify on his or her own behalf is grounded in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 2708-2709, 97 L.Ed.2d 37 (1987); Webber, 208 F.3d at 550. Likewise, our state constitution provides that "[i]n all criminal prosecutions the accused has the right to be heard by himself and counsel." Ky. Const. § 11. The Kentucky General Assembly has enacted KRS 421.225, which states that "[i]n any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him."

In Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.1988), the Seventh Circuit Court of Appeals held that it was error for the trial court to deny a defendant the right to testify "no matter how unwise such a decision" may have ultimately proven to be. The court noted that the trial court's unwillingness to allow the defendant to testify might have stemmed from the fact that Ortega's conduct had been disruptive throughout the trial. Id. at 261. While acknowledging sympathy for the court in such a situation, the court stated, "[n]onetheless, courts should carefully consider a defendant's request to exercise his or her constitutional rights, particularly the right to testify." Id. "A contentious defendant has no fewer rights than a sympathetic one." Id.

We believe that the trial court's refusal to allow Appellant to testify was error, even though it is clear from the record in this case that the trial court was merely trying to protect Appellant from herself. Appellant repeatedly stated that she wanted the prosecutors to just kill her. Defense counsel advised the court that Appellant was acting out in an attempt to use the death penalty to commit suicide, and also that any testimony given might have had an effect on Appellant's insanity defense. The trial court found that Appellant's desire to testify stemmed from a cathartic need to explain why she did what she did, rather than a desire to aid in her own defense. The trial court ultimately found that it would be in Appellant's best interest if she were kept off of the stand.

We believe that it was the trial court's duty to allow Appellant to testify regardless of the collective belief of all involved that such a decision was being...