State v. Albright, 77-014-CR

Citation291 N.W.2d 487,96 Wis.2d 122
Decision Date06 May 1980
Docket NumberNo. 77-014-CR,77-014-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Sharon ALBRIGHT, Defendant-Appellant.
CourtUnited States State Supreme Court of Wisconsin

Garrett N. Kavanagh, Asst. State Public Defender (argued) and Howard B. Eisenberg, State Public Defender, on brief, for defendant-appellant.

David J. Becker, Asst. Atty. Gen. (argued) and Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.

DAY, Justice.

This is an appeal from an order summarily dismissing Sharon Albright's (hereinafter the defendant) motion, brought pursuant to sec. 974.06, Stats. requesting a new trial or release from custody and discharge. She had been convicted of one count of contributing to the delinquency of a child 1 and one count of conspiracy to commit burglary. 2 She alleged in her motion that she was denied her right to testify in her own behalf, as guaranteed by the Constitution of the United States and the State of Wisconsin. In dismissing the motion, it was the opinion of the trial court that "(t)he files and records of this action conclusively show that the defendant is entitled to no relief for the reason that all the matters raised by the defendant in this motion were raised . . . in a post-conviction motion heard by this Court on the 24th of June, 1976, and were decided against the defendant. . . . This motion is nothing but a repetition of the matters previously adjudicated on that date." The motion was dismissed pursuant to sec. 974.06(3), Stats. 3

At trial, the defendant was represented by appointed counsel. Her post conviction counsel moved for a new trial. The motion was based on two grounds: a lack of evidence to support the conviction and the ineffective assistance of counsel.

At the hearing for a new trial, the defendant testified that she felt that she should have been allowed to testify on her own behalf. She said that she asked her attorney four times regarding the matter but that he told her that he thought she was too unstable to testify and that the prosecution would make her "look bad."

Her trial attorney testified that he discussed with his client whether to put her on the stand prior to the trial. He "indicated to her (that he) . . . didn't feel it was good strategy for her to take the stand." He stated further that the defendant called him a day or two before the trial to ask whether the trial could be postponed because she did not think she could "get through it." He told her then that the trial could not be postponed and that he did not think he wanted her to testify. She asked again at the trial if she could testify, and he told her that he did not think that it was wise to do so because she had a prior conviction which he thought might be admissible and because he felt that the district attorney could "make her look poorly."

On the day of the trial, prior to selection of the jury, the trial judge held a conference in his chambers in the presence of counsel for both sides and the defendant. The district attorney asked if the defendant was going to take the stand for the purpose of determining whether to make a motion to allow the admission of her prior conviction. Her trial counsel stated that he did not expect her to take the stand. The defendant did not say anything at that time, but she did state at her post conviction hearing that when they got back into the courtroom she again asked her attorney if she could testify. She said she did not say anything to the trial judge because she did not know or understand her attorney's "reasoning."


We begin by noting that at common law criminal defendants were not competent to testify under oath in their own behalf at trial. By 1895 the federal government and every state, except Georgia, had qualified criminal defendants to give sworn evidence if they wished. 4 Ferguson v. Georgia, 365 U.S. 570, 577, 596-598, 81 S.Ct. 756, 760, 770-771, 5 L.Ed.2d 783 (1961). See also, Comment, Due Process v. Defense Counsel's Unilateral Waiver Of The Defendant's Right To Testify, 3 Hastings Const.L.Q. 517, 518-521 (1976). In Wisconsin, the criminal defendant has been deemed competent to testify as a witness since 1869. 5

The question of competency is distinct from the question of whether there is a constitutional right to testify. The Constitution of Wisconsin provides in Art. I, sec. 7:

"In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ."

In construing this section, this Court has stated that "assuming" the criminal defendant has a constitutional right to testify, that right is "to testify truthfully in his own behalf." State ex rel. Simos v. Burke, 41 Wis.2d 129, 137, 163 N.W.2d 177, 181 (1968). We need not decide whether the Wisconsin Constitution grants a constitutional right to testify, because we conclude that the United States Constitution guarantees that right.

The United States Supreme Court has never explicitly determined whether a criminal defendant has a constitutionally protected right to testify in his own behalf. Although not expressly stated within the body of the United States Constitution, the right to testify is a part of the due process rights of the defendant protected by the Fourteenth Amendment. 6 "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Further, the Supreme Court has stated that it ". . . has often recognized the constitutional stature of rights that, though not literally expressed in the document, are essential to due process of law in a fair adversary process. It is now accepted, for example, that an accused has a right to . . . testify on his own behalf . . ." Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975) (fn. 15). In another context, the Supreme Court has stated that the right to testify is both "an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972); see, Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). Several states have also held that the right to testify is a federal constitutional right. State v. Rosillo, --- Minn. ---, 281 N.W.2d 877 (1979); Ingle v. State, 92 Nev. 104, 546 P.2d 598 (1976) (basis of right not expressed); Hughes v. State, 513 P.2d 1115 (Alaska, 1973) (basis of right not expressed); State v. Noble, 109 Ariz. 539, 514 P.2d 460 (1973); People v. Knox, 58 Ill.App.3d 761, 16 Ill.Dec. 182, 374 N.E.2d 957 (1978); People v. Robles, 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710 (1970); Townsend v. Superior Court of Los Angeles County, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619 (1975); contra, Young v. Ricketts, 242 Ga. 559, 250 S.E.2d 404 (1978).

We conclude that there is a constitutional due process right on the part of the criminal defendant to testify in his own behalf.


The key issue presented is whether the defendant can be deemed to have waived her right to testify. We recognize that certain constitutional rights of a criminal defendant are so fundamental that they are deemed to be personal rights which must be waived personally by the defendant. In this category of personal rights is found the decision whether to plead guilty, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) the decision whether to request a trial by jury, Adams v. U. S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); the decision to appeal, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); the decision whether to forego the assistance of counsel, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); and the decision to obtain the assistance of counsel and to refrain from self-incrimination, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We are not convinced that the right to testify falls within this category of "fundamental" rights, which can only be waived in open court on the record by the defendant. To be sure, the right to testify is an important constitutional right. However, we believe that the right to testify, as distinguished from those rights considered to be so fundamental as to be personal to the defendant, does not go to the very heart of the adjudicatory process. Thus, for example, in Boykin v. Alabama, 395 U.S. at 242, 89 S.Ct. 1709, 23 L.Ed.2d 274, it was held to be plain error for the trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. The Supreme Court reasoned that the plea of guilty ". . . is more than a confession . . . ; it is itself a conviction; nothing remains but to give judgment and determine punishment." Id. at 242, 89 S.Ct. at 1711-1712. The plea of guilty, when accepted, operates as a waiver by the defendant of numerous fundamental rights that ensure a fair trial including the privilege against self-incrimination; the right to trial by jury; and the right to confront one's accusers. Boykin v. Alabama, 395 U.S. at 243, 89 S.Ct. at 1712.

Similarly, the decisions whether to waive the right to an appeal, the assistance of counsel, or to be tried by a jury, are so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938). That is, the waiver must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.

The duty is on the trial court to ascertain knowing relinquishment.

"The constitutional right of an accused to be represented by counsel invokes, of itself,...

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