State v. Albright

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 and one count of conspiracy to commit burglary. 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.

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 court room 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.”

I. DOES A CRIMINAL DEFENDANT HAVE A CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN BEHALF?

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. Ferguson v. Georgia, 365 U.S. 570, 577, 596-598 (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.

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 (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. “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 (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 (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 (1972); see, Ferguson v. Georgia, 365 U.S. 570 (1961). Several states have also held that the right to testify is a federal constitutional right. State v. Rosillo, 281 N.W.2d 877 (Minn. 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, 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.

II. WAS THE DEFENDANT UNCONSTITUTIONALLY DENIED HER RIGHT TO TESTIFY?

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 (1969); the decision whether to request a trial by jury, Adams v. U. S. ex rel. McCann, 317 U.S. 269 (1942); the decision to appeal, Fay v. Noia, 377 U.S. 391 (1963); the decision whether to forego the assistance of counsel, Faretta v. California, 422 U.S. 806 (1975); and the decision to obtain the assistance of counsel and to refrain from self-incrimination, Miranda v. Arizona, 384 U.S. 436 (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, 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. 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.

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 (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.

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, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, 304 U.S. at 465.

The Supreme Court said that failure of the trial court to make this determination results in loss of jurisdiction by that court to proceed. The trial court in the case at bar was not required to advise the defendant that she had a right to testify. To initiate this inquiry would necessitate a further determination of whether the decision was the defendant’s own and that the decision was not made under some misapprehension on her part of the consequences either way.

The defendant’s right to testify in a criminal case, by contrast, was long considered to be solely a tactical decision to be left exclusively to the determination of defense counsel. Until recently, it was the established rule that “counsel. . . . [is] free to keep defendants from testifying whenever counsel see fit. Any suggestion to the contrary is chimerical.” United States v. Poe, 352 F.2d 639, 641, (D.C. Cir. 1965); Sims v. Lane, 411 F.2d 661 (7th Cir. 1969). We perceive no need for courts in post conviction hearings to delve into the processes by which an attorney and his client determine whether the defendant should waive his right to testify.

The defendant is free to accept or reject counsel to aid in his defense. Faretta v. California, supra. When the defendant accepts counsel to conduct the defense, the decision whether to assert or waive certain constitutional rights of the defendant is delegated to the attorney. Henry v. Mississippi, 379 U.S. 443, 451 (1965). This Court has rejected the contention that the defendant has a constitutional right to be actively represented in the courtroom by counsel and by himself. Moore v. State, 83 Wis.2d 285, 265 N.W.2d 540 (1978).

We conclude that the decision whether to testify should be made by the defendant after consulting with counsel. But we also conclude that counsel, in the absence of the express disapproval of the defendant on the record during the pretrial or trial proceedings, may waive the defendant’s right to testify. If counsel waives the defendant’s right to testify, and that decision was prejudicial to the defendant, the objection of the defendant should be on the failure to obtain the effective assistance of counsel. The Illinois Supreme Court has focused upon the issue presented here, and the problem of “second-guessing” by the defendant after his conviction.

“The line between vigorous persuasion and coercion is a fine one; the lawyer is obligated not to present testimony that he is satisfied is not true, and he cannot call upon the trial judge to make the decision for him. . . . By hypothesis, in every case in which the issue is raised, the lawyer’s advice will in retrospect appear to the defendant to have been bad advice, and he will stand to gain if he can succeed in establishing that he did not testify because his lawyer refused to permit him to do so.” People v. Brown, 54 Ill.2d 21, 24, 294 N.E.2d 285 (1973).

In that case the court held that in the absence of a contemporaneous assertion by the defendant of his right to testify at the trial, the trial j udge properly denied a post conviction hearing on the issue.

There is nothing in the record to suggest that at the time of the trial, the defendant refused to acquiesce in her trial counsel’s decision not to put her on the stand. The record at the trial is silent, and the record on the post conviction motion merely shows that although she disagreed with her attorney’s decision, she reluctantly accepted his advice. She also had adequate opportunity before the trial to raise her objection. The defendant was in the chambers with counsel and the trial judge when the question as to whether she would testify arose. She chose not to speak when her attorney told the trial judge that he did not expect her to take the stand. She said later that she did not speak because she did not understand her attorney’s reasoning. It is apparent that even at that late date, she was relying upon her attorney’s advice and accepted that advice.

We do not believe that either this court, or trial courts, are in a position to determine whether the criminal defendant accepted counsel’s advice, or was deprived of the right to testify when the trial record is silent on the question.

We decline to recommend that a trial judge, sua sponte advise, a defendant of the right to testify. Such admonition is subject to abuse in interpretation and may provoke substantial judicial participation that could frustrate a thoughtfully considered decision by the defendant and counsel who are designing trial strategy.

The fundamental purpose in requiring that the accused be afforded a lawyer at every critical stage of the prosecution is to ensure that the defendant’s constitutional rights are jealously guarded. We in no way mean to hinder the defendant’s right to testify. If counsel determines that it is not advisable for the defendant to testify and the defendant acquiesces in that decision, then the right will be deemed waived. If on the other hand the defendant at the time of the trial raises his objection in the record before the trial court, he must be given the option to testify. We will not determine when “advice” stops and the refusal to permit a defendant to testify begins in post conviction proceedings based on a silent record.

By the Court. — Order affirmed.

Sec. 947.15(1) (a), Stats. 1975.

Secs. 939.31 and 943.10(1) (a), Stats. 1975.

Sec. 974.06(3) Stats. 1975, provides:

“974.06. Post-conviction procedure. ... (3) Unless the motion and the files and records of the action conclusively show that the prisoner is entitled to no relief, the court shall:

“(a) Cause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court.

“(b) Appoint counsel pursuant to s. 971.06(6) [970.02(6)] if, upon the files, records of the action and the response of the district attorney it appears that counsel is necessary.

“(c) Grant a prompt hearing-.

“(d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. .”

In the sixteenth century, the criminal defendant in England was required to conduct his own defense. He was not allowed to call witnesses or to have the assistance of counsel. The trial took the form of an extended argument between the defendant and the counsel for the Crown in which they questioned each other and presented their respective arguments. By the seventeenth century criminal defendants were allowed to call witnesses in their behalf, however, the accused was an interested witness and was incompetent to testify. Disqualification for interest was carried over to this country by our founding fathers. It was not until the nineteenth century that the rule of disqualification for interest came under attack and was gradually eroded by statute. The rules of disqualification for interest of criminal defendants were the last to fall. Ferguson v. Georgia, 365 U.S. 570, 573-577 (1961); R. Popper, History and Development Of The Accused’s Right To Testify, 1962 Wash. U. L.Q. 454; State v. McKenzie, 17 Md. App. 563, 576-577, 303 A.2d 406 (1973).

At common law the right of the defendant to be “heard” meant the right to conduct his own trial but did not include the right to testify.

Sec. 325.13, Stats. 1959 (renumbered sec. 885.13 in 1965) provided :

“325.13. Party may be witness, credibility. (1) No person shall be disqualified as a witness in any action or proceeding, civil or criminal, by reason of his interest therein; and every person shall, in every such case, be a competent witness, except as otherwise provided in this chapter. But his interest or connection may be shown to affect the credibility of the witness.

“(2) In all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness; but his refusal or omission to testify shall create no presumption against him or any other party thereto.”

See. 886.13, Stats., was repealed and the part relevant to this case was replaced with sec. 906.01, Stats, (effective January 1, 1974 by Supreme Court Order, 59 Wis.2d R. 157), which provides:

“906.01. General rule of competency. Every person is competent to be a witness except as provided by ss. 885.16 and 885.17 or as otherwise provided in these rules.”

Federal and state courts have not clearly articulated the source of the right to testify. See, Wright v. Estelle, 572 F.2d 1071 (5th Cir., 1978) (Godbold, J. dissenting) for an extensive discussion of this issue. See also, United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (3d Cir. 1977); Winters v. Cook, 489 F.2d 174 (5th Cir. 1974); U. S. v. Bentvena, 319 F.2d 916 (2d Cir. 1963); cert. denied sub nom., Ormento v. U. S., 375 U.S. 940 (1963); Compare, Poe v. United States, 233 F. Supp. 173 (D. D.C. 1964) aff’d, 352 F.2d 639 (D.C. Cir. 1965).

It is interesting how perceptions of what is “just” change. Today some argue that a defendant’s right to testify is a “fundamental right” essential to a fair trial for a defendant. It was not always so. In the latter half of the last century when the several states (with the exception of Georgia) were passing legislation making defendants competent to testify (followed by England in 1898) many of those opposed to the change based their arguments on what they felt was in the best interest of the defendant. One of the arguments against making defendants competent to testify was that if jurors knew the defendant could testify and did not, the jury would hold it against such defendant, “if he’s innocent why doesn’t he get on the stand and say so.” When juries know that a defendant is not permitted to testify the negative inference from silence does not arise, or so the old argument ran. The only empirical evidence this writer has found seems to lend credence to the old fears.

“ ‘In 99 percent ... of all the criminal cases tried in the eighty-six judicial districts of the federal level [in 1956] defendants who did not take the stand were convicted by juries. . . . The fact of the matter is that a defendant who does not take the stand does not in reality enjoy any longer the presumption of innocence.’” Williams, The Trial Of A Criminal Case, 29 N.Y. St. B.J. 36, 42 (1957) quoted in Comment, Due Process v. Defense Counsel’s Unilateral Waiver Of The Defendant’s Right To Testify, 3 Hastings Const. L.Q. 517, 534 (1976). Several writers have commented on the detrimental effect to the defendant by not testifying. (Ibid., p. 533).

It is also interesting to note that two of the leaders in the fight to make defendants competent to testify did not favor the Fifth Amendment right against self incrimination. Ferguson v. Georgia, 365 U.S. at 579.

The defendant should be given the ultimate decision on waiving- the right to testify. The ABA Project on Standards for Criminal Justice, The Prosecution Function And The Defense Function §5.2, pp. 237-238 (App. Draft 1971) provides:

‘‘5.2. Control and direction of the case, (a) Certain decisions relating- to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.”

But whether the third enumerated standard is followed in a given case, raises an issue of effective representation of the defendant by counsel. It is not in and of itself of constitutional dimension. Cf., Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring).