State v. Robinson
| Decision Date | 19 August 1999 |
| Docket Number | No. 66758-6.,66758-6. |
| Citation | 138 Wash.2d 753,982 P.2d 590 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Elve ROBINSON, Jr., Petitioner. |
Michael Mittlestat, Seattle, for petitioner.
David McEachran, Whatcom County Prosecutor, Laura Hayes, Deputy, Bellingham, for respondent.
Elve Robinson challenges his convictions for second-degree rape and unlawful imprisonment. Robinson argues that he was deprived of his constitutionally protected right to testify because his defense counsel prevented him from testifying at trial. Robinson contends that because he was denied the right to testify on his own behalf, he is entitled to a new trial.
We hold that Robinson has presented sufficient evidence to entitle him to an evidentiary hearing. Accordingly, we reverse the Court of Appeals and remand this case for an evidentiary hearing on the issue of whether Robinson's waiver of his right to testify was knowing and voluntary. At the hearing, Robinson must show by a preponderance of the evidence that his attorney actually prevented him from testifying. If Robinson is able to meet this burden, the lower court must next address the question of whether he was prejudiced by his attorney's deficient performance. If Robinson can prove that he was prejudiced, he is entitled to a new trial.
The State charged Elve Robinson with one count of second-degree rape and one count of unlawful imprisonment after Robinson picked up a woman at a Seattle bus stop, took her to a hotel in Blaine, Washington, and allegedly forced her to have sexual intercourse with him against her will. The defense's theory was that the victim, Diane Morris, had consensual sex with Robinson in exchange for drugs. Before trial, Robinson's attorney, Richard Kimberly, told the court that "Mr. Robinson will testify in fact Miss Morris was looking for drugs and asked repeatedly for a double rock." Report of Proceedings at 8 (11/13/95). To support this theory, the defense presented expert testimony that Morris had a high concentration of cocaine in her system when she was treated at the hospital after the incident. Robinson did not take the stand during the trial, however, and Kimberly included in his packet of proposed jury instructions an instruction directing the jury not to draw an inference of guilt or prejudice from the fact that the defendant did not testify.
During the course of the trial, the court held Attorney Kimberly in contempt of court twice and fined him for disrespectful comments made to the court outside the presence of the jury. The second time that the court held him in contempt, Kimberly left the courtroom and told the bailiff that he was not going to come back. Kimberly returned in the presence of his own counsel only after being ordered to do so by the court.
After the court held Kimberly in contempt a second time, Robinson apparently decided that he wished to testify. The evidence suggests that Robinson made his desire to testify known to Kimberly after the defense rested but before closing arguments. However, Kimberly did not move to reopen the evidence to allow Robinson to testify, but rather proceeded with closing arguments. The jury convicted Robinson of second-degree rape and unlawful imprisonment.
After the trial, Robinson fired Kimberly, acquired new counsel, and filed a motion for a new trial, arguing that Kimberly prevented him from testifying and thereby deprived him of his constitutional right to testify. In an affidavit attached to Robinson's motion, Kimberly admitted that his decision not to make a motion to reopen the evidence was based upon his own personal considerations, rather than trial strategy. He stated:
[w]hen I did return to court to represent [Robinson] after the second contempt citation, Elve pleaded with me to put him on the stand and let him testify on his own behalf. At that time I was so upset about my interactions with the trial judge that I only wanted to get this case done with and not be in court in front of the trial judge anymore than absolutely necessary in this case. Consequently, I refused to accede to my client's request and did not ask the court for permission to reopen the case and allow the defendant to testify as he demanded that I do.
Supplemental Clerk's Papers (Supp.CP) at 81.
Kimberly added "If I could have viewed my client's request objectively at the time, I certainly would have asked to allow him to testify as he requested." Id.
Robinson's new attorney argued that failing to alert the court to Robinson's desire to testify not only deprived Robinson of his constitutional right to testify, but amounted to per se ineffective assistance of counsel. Based upon these constitutional errors, Robinson asked for a new trial. In his post-trial motions, Robinson failed to make an offer of proof about the substance of his proposed testimony and failed to show that he was prejudiced by his attorney's actions. The trial court denied Robinson's motion for a new trial, but noted that had Kimberly moved to reopen the evidence at the first trial, the court would have granted the motion and allowed Robinson to testify.
The Court of Appeals affirmed Robinson's convictions. The court held that a defendant who waives the right to testify and does not inform the court that he has changed his mind until after the jury returned a verdict must submit a description of what his testimony would have been had he testified. State v. Robinson, 89 Wash.App. 530, 536, 953 P.2d 97 (1997). Without such a showing, a court has no basis to determine whether the proposed testimony would have made a difference to the ultimate outcome. Id. Robinson failed to provide such an offer of proof about the substance of his proposed testimony, so the court could not have concluded that he had been prejudiced. The court also rejected Robinson's ineffective assistance of counsel claim. While agreeing that the defense counsel's conduct fell below acceptable standards, the court held that Robinson failed to demonstrate that he was prejudiced by the conduct or that there was a reasonable probability that the outcome would have been different but for his attorney's conduct. Id. at 538, 953 P.2d 97. We granted Robinson's petition for discretionary review.
The United States Supreme Court has recognized that a criminal defendant has a constitutional right to testify on his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). On the federal level, the defendant's right to testify is implicitly grounded in the Fifth, Sixth, and Fourteenth Amendments. Id. at 51-52, 107 S.Ct. 2704. In Washington, a criminal defendant's right to testify is explicitly protected under our state constitution. This right is fundamental, and cannot be abrogated by defense counsel or by the court. State v. Thomas, 128 Wash.2d 553, 558, 910 P.2d 475 (1996). Only the defendant has the authority to decide whether or not to testify. Id. The waiver of the right to testify must be made knowingly, voluntarily, and inteligently, but the trial court need not obtain an on the record waiver by the defendant. Id. at 558-59, 910 P.2d 475.
Washington case law supports Robinson's assertion that a defendant who remains silent at trial may be entitled to an evidentiary hearing if he alleges that his attorney actually prevented him from testifying. Thomas, 128 Wash.2d 553, 910 P.2d 475; State v. King, 24 Wash.App. 495, 601 P.2d 982 (1979). This court first recognized this rule in In re Personal Restraint of Lord, 123 Wash.2d 296, 868 P.2d 835 (1994). In Lord, the defendant argued that he did not knowingly and voluntarily waive his right to testify. Lord, 123 Wash.2d at 316, 868 P.2d 835. He claimed that the only reason that he did not testify at trial was because his attorneys thought that his testifying would be the "wrong thing" to do. Id. at 316, 868 P.2d 835. This court held that Lord's mere assertion that his counsel advised him against taking the stand was insufficient to warrant an evidentiary hearing on the issue of whether the waiver was knowing and voluntary. We suggested, however, that Lord would have been entitled to an evidentiary hearing had he alleged that his attorneys "`actually prevented' him from testifying." Id. at 317, 868 P.2d 835 (quoting State v. King, 24 Wash.App. at 499, 601 P.2d 982). Lord's allegations were plainly insufficient, so there was no need to reexamine his decision not to testify.
Washington is not alone in affording defendants an evidentiary hearing upon a sufficient showing that their attorneys actually prevented them from taking the stand. Several federal jurisdictions provide for evidentiary hearings if a defendant is able to show that his attorney prevented him from testifying. Siciliano v. Vose, 834 F.2d 29 (1st Cir.1987); Underwood v. Clark, 939 F.2d 473 (7th Cir.1991); Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.P.R.1998). See also Louis M. Holscher, The Legacy of Rock v. Arkansas: Protecting Criminal Defendants' Right to Testify in Their Own Behalf, 19 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 223, 264 (1993) ().
The amount of evidence that must actually be produced before a criminal defendant is entitled to such an evidentiary hearing was discussed most recently in the unanimous State v. Thomas decision. 128 Wash.2d 553, 910 P.2d 475. In Thomas, a defendant challenged his conviction in post-trial motions, asserting, without any factual support, that his attorney had prevented him from testifying. Id. at 561, 910 P.2d 475. We held that no evidentiary hearing was required. "The defendant must ... produce more than a bare assertion that the right [to testify] was violated; the defendant must present substantial, factual evidence in order to merit an evidentiary hearing or other action." Id. Once a defendant meets this burden, he is entitled to an...
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