State v. Thomas

• Decision Date: 08 February 1996
• Docket Number: No. 62500-0,62500-0
• Citation: 910 P.2d 475,128 Wn.2d 553
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Tyrone F. THOMAS, Appellant.

Page 553

128 Wn.2d 553

910 P.2d 475

The STATE of Washington, Respondent, v. Tyrone F. THOMAS, Appellant.

No. 62500-0.

Supreme Court of Washington En Banc.

Feb. 8, 1996.

James L. Reese, III, Port Orchard, for petitioner.

Russell Hauge, Kitsap County Prosecutor, Ms. Pamela Loginsky, Deputy, Port Orchard, for respondent.

ROSSELLE PEKELIS, Justice Pro Tem. ^*

Tyrone Thomas (Thomas) seeks review of an unpublished decision of the Court of Appeals affirming his conviction for possession of stolen property. Thomas claims that the trial court erred by not advising him of his constitutional right to testify in his own behalf. We affirm. Thomas was charged with and tried for first degree possession of stolen property. Thomas was present throughout the one-day trial proceeding. At the start of the trial, defense counsel Tim Kelly (Kelly) proposed a pattern jury instruction directing the jury not to draw any adverse inferences from the fact that the defendant has not testified. Outside the presence of the jury, the court noted defense counsel's proposed instructions and said to Kelly, "I take it from the instructions that you proposed that you do not anticipate that Mr. Thomas will testify." Report of Proceedings (July 1, 1992) at 2.

Kelly replied, "Haven't decided yet, but at this time I would say no." Report of Proceedings (July 1, 1992) at 2. The defense ultimately called only one witness, then rested without calling the defendant to testify. The jury found Thomas guilty of first degree possession of stolen property.

On August 26, 1992, Kelly filed a notice of withdrawal as Thomas's attorney of record. The attached affidavit alleged that after the August 21 sentencing hearing, Thomas informed Kelly in front of numerous witnesses that he would be filing a lawsuit against him. On September 11, Thomas submitted a motion for arrest of judgment and a new trial. With this motion, he included an unattested statement that "[o]n July 1, 1992 after consultation with Tim Keller [sic] during trial, I was denied the ability to testify pursuant to RPC rule 1.2(A)." ¹ Clerk's Papers at 63. Thomas's motion to extend the time limit for filing his motion was denied in accordance with CrR 7.4 and 7.6 because judgment had already been entered. The court did not consider the merits of Thomas's claim.

Thomas then appealed to the Court of Appeals, again asserting the denial of his right to testify but now alleging that the trial court had erred by not advising him of this right. Appellant Br. at 1. After the appeal was filed, Kelly filed an affidavit at the request of the Office of the Prosecuting Attorney for Kitsap County to describe discussions that he had with Thomas regarding whether Thomas would testify at trial. Kelly stated in his affidavit that the two had discussed the issue on two occasions before the trial, and he had explained the potential drawbacks and benefits to testifying. Kelly also said:

I explained to Mr. Thomas that, eventually, the decision would be his, but that he need not make that decision until the State had rested at trial.

During the trial, the State offered all of Mr. Thomas' statements (including exculpatory portions) through Officer Van Santford of the Bremerton Police Department. After hearing all of the State's evidence, I asked Mr. Thomas whether he wished to testify or not. He responded that he did not want to testify. The defense rested.

At no time did it appear to me that Mr. Thomas did not understand his right to testify, nor did he not understand the potential benefits and drawbacks. The decision not to testify was his and it was made intelligently.

Clerk's Papers at 101 (emphasis added).

The Court of Appeals, Division II, concluded that there was no violation of Thomas's constitutional right to testify and affirmed his conviction in an unpublished opinion. State v. Thomas, No. 16458-2-II (Wn.App. Dec. 7, 1994).

I RIGHT TO TESTIFY UNDER UNITED STATES CONSTITUTION

Thomas first contends that the trial court committed reversible error by failing to advise him of his right to testify in his own behalf, as guaranteed by the United States Constitution. The United States Supreme Court has held that a criminal defendant has a constitutional right to testify in his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 2707, 97 L.Ed.2d 37 (1987). The right to testify has its source in the Fourteenth Amendment's due process clause, in the compulsory process clause of the Sixth Amendment, and as a necessary corollary to the Fifth Amendment's privilege against self-incrimination. Id. at 51-52, 107 S.Ct. at 2708-09. The Court has not, however, addressed the question of what constitutes a valid waiver of this right and what duty, if any, a trial court has to ensure that a defendant validly waives the right.

We recently considered the question of whether an evidentiary hearing was required after trial to determine if a defendant had voluntarily waived the right to testify. In re Lord, 123 Wash.2d 296, 316, 868 P.2d 835, cert denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994). We held that "[a]n evidentiary hearing would be required only if the defendant 'alleges ... that his attorney actually prevented him from testifying in his own behalf.' " Id. 123 Wash.2d at 317, 868 P.2d 835 (citing State v. King, 24 Wn.App. 495, 499, 601 P.2d 982 (1979)) (emphasis added). Because the defendant in that case merely alleged that his attorneys told him that testifying was "the wrong thing" for him to do, his argument did not meet this standard. Id. 123 Wash.2d at 317, 868 P.2d 835. The personal restraint petition was based on the defendant's claim that the trial court's lack of an adequate colloquy failed to ensure that his waiver of the right to testify was knowing and voluntary. Although we suggested potential negative consequences that could result from a colloquy between the trial court and defendant regarding whether the defendant would testify, ² we did not need to directly address the question of whether the trial court has a duty to inform a defendant of his constitutional right to testify in his own behalf. We now expressly hold that a trial judge is not required to advise a defendant of the right to testify in order for a waiver of the right to be valid.

The right to testify in one's own behalf has been characterized as a personal right of "fundamental" dimensions. E.g., Rock, 483 U.S. at 52, 107 S.Ct. at 2709 ("Even more fundamental to a personal defense than the right to self-representation ... is an accused's right to present his own version of events in his own words."); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.), cert. denied, 510 U.S. 1019, 114 S.Ct. 620, 126 L.Ed.2d 584 (1993); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir), cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987). The defendant, not trial counsel, has the authority to decide whether or not to testify. E.g., Jones v. Barnes, 463 U.S. 745, 751 n. 6, 103 S.Ct. 3308, 3313 n. 6, 77 L.Ed.2d 987 (1983); Joelson, 7 F.3d at 177; State v. King, 24 Wash.App. 495, 499, 601 P.2d 982 (1979); RPC 1.2(a). In Johnson v. Zerbst, the Supreme Court set forth the standard for a valid waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938). In order to be effective, the waiver of a fundamental constitutional right must be "an intentional relinquishment or abandonment of a known right or privilege." Id. In general, the waiver of a fundamental constitutional right must be made knowingly, voluntarily, and intelligently.

Thomas claims that in order to ensure that a waiver meets this standard, the trial court must inform a defendant of the constitutional right to testify in one's own behalf. First, we note that all of the federal circuit courts that have addressed the question of whether a trial judge must inform a defendant of the right to testify have concluded that the trial court has no such duty. United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir.1995); Joelson, 7 F.3d at 177; United States v. Teague, 953 F.2d 1525, 1532 n. 8 (11th Cir.), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992); United States v. Martinez, 883 F.2d 750, 760 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991); Ortega, 843 F.2d at 261; Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir.1987); Bernloehr, 833 F.2d at 751-52; United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984). Furthermore, the great majority of state courts to have reached this issue have likewise determined that the United States Constitution imposes no obligation on trial judges to inform defendants of this right. E.g., State v. Savage, 120 N.J. 594, 577 A.2d 455, 472 (1990); Aragon v. State, 114 Idaho 758, 760 P.2d 1174, 1179 (1988); State v. Allie, 147 Ariz. 320, 710 P.2d 430, 437-38 (1985); Commonwealth v. Freeman, 29 Mass.App.Ct. 635, 564 N.E.2d 11, 14 (1990). ³ We concur that the Constitution imposes no such obligation on a trial court.

We recognize that the waiver of the right to testify must be knowing. E.g., Martinez, 883 F.2d at 756. It does not follow, however, that the trial court must obtain an on-the-record waiver of the right. We believe that the right to testify belongs in the category of rights for which no on-the-record waiver is required. In Martinez, the Ninth Circuit likened the right to testify to the right to remain silent, the right to represent oneself, and the right to confront witnesses. Martinez, 883 F.2d at 756-59. The right to remain silent is waived by the act of taking the stand; the trial court has no duty to inquire as to whether the defendant knowingly and intelligently waived the right. Id. at 756-57. Likewise, a court is...