State v. Tuplin

• Citation: 901 A.2d 792,2006 ME 83
• Parties: STATE of Maine v. Luke TUPLIN.
• Decision Date: 06 July 2006
• Court: Supreme Judicial Court of Maine (US)

Page 792

901 A.2d 792

2006 ME 83

STATE of Maine v. Luke TUPLIN.

Supreme Judicial Court of Maine.

Submitted On Briefs: September 13, 2005.

Decided: July 6, 2006.

Stephanie Anderson, District Attorney, Julia A. Sheridan, Asst. Dist. Attorney, Portland, for State.

Luke Tuplin, Lisbon, for Defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, and LEVY, JJ.

Dissent: DANA, CALKINS, and SILVER, JJ.

SAUFLEY, C.J.

[¶ 1] We are called upon here to address the procedure constitutionally required of the trial court when a defendant must make the election to exercise his right to testify on his own behalf or his competing right to remain silent. Luke Tuplin appeals from a judgment of conviction entered by the Superior Court (Cumberland County, Cole, J.) upon a jury verdict finding him guilty of one count of assault (Class D), 17-A M.R.S. § 207(1)(A) (2005). Tuplin contends, among other things, that he was denied his constitutional right to testify at trial. We conclude that he waived that right, and we affirm the judgment.

I. BACKGROUND

[¶ 2] Tuplin was charged with one count of assault (Class D), 17-A M.R.S. § 207(1)(A), and one count of disorderly conduct (Class E), 17-A M.R.S. § 501(1)(C) (2005). He pleaded not guilty on both counts and was tried by a jury on February 15, 2005. The State dismissed the count of disorderly conduct, but the assault charge proceeded to trial.

[¶ 3] At the trial, where Tuplin represented himself, the State presented the testimony of six witnesses and rested. After excusing the jury, the court instructed Tuplin as follows:

[I]f you wish to you can present evidence. You can have other witnesses testify, or you can testify yourself. You are never compelled to testify or present evidence, but if you wish to do so you have the opportunity, you understand that?

MR. TUPLIN: Yes.

THE COURT: All right, and do you know what you are going to do?

MR. TUPLIN: No, sir, I don't.

[¶ 4] After this exchange, the court recessed briefly to allow Tuplin to decide whether he would testify or not. After this recess, the trial resumed without further discussion on the record of Tuplin's decision regarding his right to testify, and Tuplin presented two witnesses to support his claim that his actions were in self-defense. Following cross-examination of the second defense witness, Tuplin stated, "That's all the witnesses I have, sir."

[¶ 5] The court then stated, "Defense rests," and invited both sides to present closing arguments. When Tuplin, during his closing argument, added facts that had not been presented in the course of the trial, the State objected twice on the basis that Tuplin was arguing facts not in evidence. In his closing argument, Tuplin told the jury: "I will admit I was arguing with my girlfriend, and I admit that I hit this individual but only after he came after me." The trial court instructed Tuplin that he could "comment on the testimony of any witnesses who have testified," but that the closing argument was not an opportunity to present evidence. Tuplin responded, "okay," on both occasions and recounted the testimony of several witnesses in a fairly accurate manner. He did not, at any point, indicate that he wanted to avail himself of the opportunity to testify.

[¶ 6] After closing arguments, the court instructed the jury and then held a sidebar conference on the instructions. At sidebar, Tuplin said, "I am just wondering if I should testify, that's all, right now." The court responded, "You made that decision, okay[?]" and Tuplin said, "I didn't know I did at that time, think about it, but that's fine." He did not further pursue a request to testify, did not ask to take the stand, and did not object to the court's conclusion that he had already made that decision. The court sent the matter to the jury.

[¶ 7] The jury returned a verdict of guilty. After a brief hearing, Tuplin was sentenced to thirty days in jail with all but two days suspended and one year of probation. Tuplin challenges many aspects of the trial. Finding no error, we address only his challenge regarding the waiver of his right to testify.

II. DISCUSSION

A. Dual Rights: the Privilege Against Self-Incrimination and the Right to Testify

[¶ 8] The Fifth Amendment to the U.S. Constitution provides that no criminal defendant "shall be compelled in any criminal case to be a witness against himself." The purpose of the privilege against self-incrimination is to ensure that "the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (recognizing that the privilege against self-incrimination enforces the fundamental principle that the American criminal system is accusatorial, not inquisitorial). Accordingly, the privilege against self-incrimination, extended to defendants in state actions by the Fourteenth Amendment, has long been regarded as "one of the `principles of a free government.'" Malloy v. Hogan, 378 U.S. 1, 9, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (quoting Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).

[¶ 9] While the privilege against self-incrimination has historically been recognized as fundamental to the proper function of the American criminal system, a criminal defendant's right to testify has emerged more recently. See Ferguson v. Georgia, 365 U.S. 570, 573-78, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). In fact, at one time, defendants were generally prohibited from testifying at their own trials on the basis of witness incompetence due to self-interest. See id. at 574, 81 S.Ct. 756. In 1864, Maine became the first state to enact a general competency statute for criminal defendants. P.L. 1864, ch. 280, § 1; Ferguson, 365 U.S. at 577, 81 S.Ct. 756. Today, Maine's general competency statute provides: "In all criminal trials, the accused shall, at his own request but not otherwise, be a competent witness." 15 M.R.S. § 1315 (2005).

[¶ 10] By the end of the nineteenth century, every state but Georgia had abolished the disqualification of criminal defendants from testifying at trial. Ferguson, 365 U.S. at 577, 81 S.Ct. 756. As a result of this evolution in jurisprudence, the federal constitution is now recognized as guaranteeing the right to testify through the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process Clause. See Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

[¶ 11] According to the Supreme Court, "[t]he lag in the grant of competency to the criminally accused was attributable in large measure to opposition from those who believed that such a grant threatened erosion of the privilege against self-incrimination and the presumption of innocence." Ferguson, 365 U.S. at 578, 81 S.Ct. 756. The modern view of the right to testify recognizes that "[t]he opportunity to testify is . . . a necessary corollary to the Fifth Amendment's guarantee against compelled testimony." Rock, 483 U.S. at 52, 107 S.Ct. 2704. The right to testify has been characterized as "the other side of the coin on which appears the privilege against self-incrimination." Ingle v. State, 92 Nev. 104, 546 P.2d 598, 599 (1976) (quotation marks omitted). Some courts have described the duality of the right to testify and the privilege against self-incrimination by noting that an election to testify constitutes a waiver of the privilege against self-incrimination and vice versa. See, e.g., Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 865 (1987).

[¶ 12] Noting the fundamental importance of both rights, courts have continuously recognized that a careful balance between the two is necessary to assure criminal defendants a fair trial. See, e.g., Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); Commonwealth v. Freeman, 29 Mass.App.Ct. 635, 564 N.E.2d 11, 14-15 (1990); State v. Savage, 120 N.J. 594, 577 A.2d 455, 472-73 (1990). We examine the waiver of either right with this careful balance in mind.

B. Standard of Review

[¶ 13] We review factual findings made by a trial court regarding waiver of a constitutional right for clear error. See State v. Coombs, 1998 ME 1, ¶¶ 7, 13, 704 A.2d 387, 389, 391. However, "the ultimate issue of waiver has a `uniquely legal dimension,' which merits independent appellate review." Id. ¶ 13, 704 A.2d at 391 (citation omitted) (quoting Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)); see State v. Watson, 2006 ME 80, 31, 900 A.2d 702, 713 (applying the same bifurcated review to waiver of right to counsel); State v. Ouellette, 2006 ME 81, ¶ 21, 901 A.2d 800, 807 (applying the same bifurcated review to waiver of right to jury trial).

[¶ 14] As with other constitutional rights inherent in the criminal process, a waiver of the right to testify must be both voluntary and knowing. United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987); see Epsom v. Hall, 330 F.3d 49, 52 (1st Cir.2003); State v. Staples, 354 A.2d 771, 776 (Me.1976) (requiring a voluntary and knowing waiver of a criminal defendant's right to be present at trial). A valid waiver must amount to a defendant's "`intentional relinquishment or abandonment of a known right or privilege.'" Coombs, 1998 ME 1, ¶ 15, 704 A.2d at 392 (quoting State v. Knights, 482 A.2d 436, 440 (Me. 1984)). Today, in a separate matter, we have discussed standards for determining whether a waiver of the right to counsel is voluntary or knowing. See Watson, 2006 ME 80, ¶¶ 14-28, 900 A.2d at 712; see also Coombs, 1998 ME 1, ¶¶ 13-16, 704 A.2d 387, 391-92 (discussing waiver of Miranda rights).

[¶ 15] Intentional relinquishment of the right to testify is a flexible concept that may be shown by a totality of the circumstances. See Staples, 354 A.2d at 777. Waiver may be inferred from...