# FILED

December 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE, 1997 SESSION

NAPOLEON MOM ON, ) ) No. 03C01-9605-CR-00187 Appellant, )

) vs. ) Hamilton County ) STATE OF TENN ESSEE, ) Honorable Stephen M. Bevil , Judge ) Appellee. ) (Post-Conviction)

)

FOR THE APPE LLANT: FOR THE APPELLEE: On Appeal: JOHN KNOX WALKUP STEPHEN M. GOLDSTEIN Attorney General & Repor ter 314 Vine St. Chattanooga, TN 37403 JANIS L. TURNER Counsel for the State At the Hearing: 450 James Robertson Parkwa y WILLIAM J. MARETT, JR. Nashville, TN 37243-0493 Bryan & Marett 211 Third Ave. North WILLIAM H. COX Nashville, TN 37201 District Attorney General THOMAS J. EVANS Assistant District A

ttorney General 600 Market St., Ste. 310 Chattanooga , TN

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT JUDGE1 The trial on October 3 - 4, 1991 was the second trial.On June 5,

1991, the jury acquitted the petitioner of first degree murder but cou ld not reach a decision on the lesser i ncluded offense of murder in the second deg ree.

2 Specifically, the petiti on alleges that Momon’s atto rney failed to raise a defense, failed to consult with his client, fail ed to investigate the circumstances surrounding the death, failed to impeach the w itnesses, failed to conduct an adequate voir di re, and failed to obtain the vi ctim’s medical and psychological records. At the hearing, testimony about counsel’s failure to raise a defense centered on the right of the defendant to testify on his own behalf, and the trial judge made findings on that issue. In this i nstance, the allegations raised in the petition, particularly the failures to raise a defense and to consult with the defendant prior to th e second trial, are sufficient to raise the issue of whether an attorney’s unilateral decision to put on no proof violates a defendant’s constitutional right to be heard on his own behalf . We are mindful, however, that post-c

onviction petitions ar

e heard upon the issues raised by the pleadin gs and tha t the fai lure to al lege a spe cific grou nd for in effect ive assistance of counsel may re sult in waiver of the

issue on appeal. Steven Mason v. State , No. 01CO1-9610-CC-00428, slip op. at 4(Tenn. Crim. Ap p., Nashville, Sept. 30, 1997)

. See also State v. Smith , 814 S.W.2d 45, 49 (Tenn.1990). 2 OPINION The petitioner, Napoleon Momon, appeal s pursuant to Rule 3 of the Tennessee Rules of Appellate Proc edure from the Hamilton County Criminal Court’s denial of post-conv iction relief. The petitioner was convicted in 1991 of second degree murder in the s hooting death of his wife, Jac queline Daniel Momon, and received a tw enty-five-year s

entence. 1 His conviction w as affirmed on direct appeal to this Cour t. State v. Napoleon Momon , No. 03C01-9205-CR00174 (Tenn. Crim. App., Knoxv ille, Nov. 20, 1992).

On August 17, 1995, the petitione r instituted this post-c onviction proceeding in which he alleged that he was deni ed effective assistance of counsel in violation of the Sixth Amendment to the United Sta tes Constitution and Article 1, Section 9 of the Tennes see Constitution. 2 After an evidentiary hearing on the merits, the t rial court found that (1) defense counsel’s decision to rest without callin g the defenda nt to the stand was the result of t rial strategy based on the results of the first t rial; (2) based on the defendant’ s claim of3

accident, his attorney ha d no reason to pursue a self-defense th eory; (3) any evidence relating to self-defense, including the victim’s counseling records, would have been irrel evant; (4) defense counsel had n umerous meetings with the defendant and his son and was sufficiently familiar with the case; and (5) the attorney conducted an appropr iate voir dire and the d efendant never indicated to the attorney that he wanted any particular juror removed. Based on these finding s, the tria l judge he ld that th e petitio ner was not denied t he effe ctive assistance of counsel and dismis sed the petition.

In this appeal, the petitioner contends that his counsel w as ineffective because he

1. refused to allow him to testify at the second trial; 2. failed t

o raise the defen se of selfdefense and failed to obtain the victim’s counsel ing record s that woul d have been relevant to that defense; 3. failed to investigate and interview the state’s witnesses. 4. failed to confer with the petitioner prior to his second trial.

We have carefully reviewed the record and the applicable l aw, and, for the reasons discussed below, we affirm the judgment of the tri al court.

Standard of Revi ew

The Sixth Amendment of the United State s Constitution and Article I, § 9 of the Tennessee Constitution both require that a defendant in a c riminal case receive effective as sistance of counsel. Baxter v. Rose , 523 S.W.2d 9304

(Tenn. 1975). When a defendant claims ineffective assi stance of counsel, the standard applied by the cour ts of Tennessee is "whether the adv ice given or the service rendered by

the attorney is within the range of competence demanded by attorneys in criminal

cases." Summerlin v. State , 607 S.W.2d 495, 496 (Tenn. Crim. App. 1980).

In Strickland v. Washington , the United States Supreme Court defined the Sixth Amendment right to effective assistance of counsel . 466 U.S. 668, 104 S.Ct. 2052 (1984). First, the appellant must show that cou nsel's performance fell below an objective standard of reasonableness under prevailing professional norms and must demonstr ate that counsel made errors s o serious that he was not functioning as "counsel" guaranteed by the Constitution. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. Second, the pet itioner must show that counsel's performance prejudiced him and tha t those errors were so serious as to deprive the defendant of a fair trial and to call into question the reliability of the outcome. Id.

A reviewing court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professiona l assistance and must evaluate counsel's performanc e from counsel's perspectiv e at the time of the alleged error and in l ight of the totality of the ev idence. Strickland , 466 U.S. at 695. Petitioner must demonstrate that there is a reasonable pr obability that but for coun sel's def icient pe rforman ce, the re sult of t he proce eding woul d have been different. Id.

The findi ngs of fac

t made by

the tri al cour

t at the c onclusi on of a hearing on a petition for post -conviction relief has

the weight of a jury

verdict.3 Although the petitioner had k nown Jacqueline Momon for about fourteen years, they had been married only three months a t the time of her death.

4 The petitioner is also bli nd in one eye, deaf, and diabetic. 5 Clark v. State , 800 S.W.2d 500, 50 6 (Tenn. Crim. App. 1990). As a result, this court is bound by those findings unless the evidence contained in the record preponderates against the ju dgment. Cooper v. State , 849 S.W.2d 744, 746 (Tenn.1993). In our revi ew we are bound by w ell-established standards . First, the standard established in Baxter v. Rose does not require perfect representation. State v. V ermilye , 754 S.W.2d 82, 85 (Tenn. Crim. App. 1987). Second, an appellate court does not “second guess” trial

counsel’s tactical and strategic choices unl ess those choices are made w ithout adequate knowledg e of the facts or the applicable law

. Id . Third, the fact that a different proced ure or strategy might hav

e produced a different result does not necessarily depriv

e an accused of the effective assistance of counsel. Id . The burden is on the petitioner to demonstrate that th e evidence preponderates ag ainst the findings of the trial court. State v. Cook , 749 S.W.2d 42, 45 (Tenn. Crim. App. 1987).

We discuss and decide the issues p etitioner has raised with these standards in mind.

I. Denial of the Right to Testify

The grand jury indict

ed the petitioner for murder in the first degree in the death of his wife, Jacq ueline Momon. 3 The petitioner, who is a paraplegic confined to a wheel chair, testified in his own defense during the f irst trial. 4 The jury returned a ver

dict of not guilty of premeditated and deliberate murder but was unable to reach a v erdict on the lesser included offense of second degree5 The record of the first trial i s not part of the record on appeal.

Martin Biesack, who served as defense counsel in both trials and on direct appeal, said that he had the transcript at one time but that he w as unable to locate it. He opined that he may have sent it to Nashv

ille to the Board of Professional Responsibility in response to the petitioner’s complaint.

6 We are unable to summarize the state’s position because the state has not responded specifically to any of the petitioner’s a llegations. After reciting the appropriate standard as found i n Strickland and Baxter v. Rose , the state’s brief concludes with the foll owing paragraph:

In the case at hand, the trial court found that the petitioner was not deprived of effective assistance of counsel. The Court found that tw o of the four instances of ineffective assist ance as charged by the petitioner to be without basis in fact. The Court found further that the other complaints amounted to trial 6 murder. 5 Four months later, at t he second tri al, the stat e called the

same witnesses and presented v irtually the same ev

idence as in the first tri al. The defense rested without putting on any proof, and the jury found Momon guilty of second degree murder.

Trial counsel’s testimony at the post-conviction hearing corroborates the petitioner ’s contention that the attorney made the decision not to call the petitioner as a witness in the second t rial. The attorney acknow ledged that, on the second day of trial , he made the decision without consulting the petitioner and that he told Momon and Momon’s son o f the decision just before re-entering the courtr

oom. The attorney based his deci sion on the comments of two jurors in the pr

evious trial who told him that they had not beli eved Momon when he testified that he shot hi s wife accidentally.The petitioner contends that the decision to testify or not testify rests wi

th the accused, and that trial counsel was ineffective in that co unsel denied the petitioner hi s fundamental constitutional right t

o testify on his own behal f. Moreover, petitioner argues, if he had testified at the second trial , there is a reasonable probability that the outcome would have been different. 6strategy, and that the peti tioner has failed to carry the burden to show that this w as ineffective assistance or that the outcome would have been any different. 7 For the reasons discussed below, we find that defense coun sel failed to advise and consult with his client on the matter of whether or not he should take the stand in his ow n behalf at the second trial and that , consequently, the petiti oner was deprived of his constitutional right to be heard at trial. See U.S. Const. amend. V, VI, X IV; Tenn. Const. art. 1, sec. 9; Rock v. Arkansas , 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2708-09 (1987); State v. Burkhart , 541 S.W.2d 365, 369 (Tenn.1976); Campbell v. State , 469 S.W.2d 506, 509 (Tenn. Crim. App. 1971); State v, Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984). How ever, the petitioner has not carried the burden of demonstrating that, if his attorney had properly advised him and consulted his wishes on the matter, he would have testified and that there is a reasonable probabi lity that, because of his te stimony, the outco me of th e trial woul d have been different.

A. A Constitutional Right

The United States Supreme Court h as made it clear that a cri minal defendant has a constitutional ri ght to testify at trial

. United State v. Dunnig an , 507 U.S. 87, 96, 113 S.Ct. 1111, 1117 (1993); Rock v. Arkansas , 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2708-2709 (1987); Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983); Faretta v. California , 422 U.S. 806, 829-834, 95 S.Ct. 2525, 2538-41 (1975); Harris v. New York , 401 U.S. 222, 225, 91 S.Ct. 643, 645 (1971). In Rock v. Arkansas , the Supreme Court stated that, a lthough, under the comm on law, a criminal de fendant was dis qualified fro m testifying,7 For federal cases holding that the right to testify is a fundamental constitutional right s

ee, e.g., United States v. Ortiz , 82 F.3d 1066, 1069 (D.C. Cir. 1996); United States v. Pennycooke , 65 F.3d 9, 10 (3d Cir. 1995) ; United States v. Joelson , 7 F.3d 174, 177 (9th Cir. 1 993): United States v. Teague , 953 F.2d 1525, 1530(11th Cir. 1992): Underwood v. Clark , 939 F.2d 473, 475, (7th Cir. 1991); United States v. Scott , 909 F.2d 488, 490 (11th Cir. 1990); Wrigh t v. Estelle , 572 F.2d 1071, 1073 (5th Cir.1978)(en banc); United States ex rel. Frierson v. Gramley, 952 F. Supp 578, 586 (N.D. Il l. 1997): Campos v. U.S. , 930 F. Supp. 787, 790 (E.D.N.Y.1996); Porter v. Singletary , 883 F.Supp. 660, 666 (M.D. Fla. 1995); Smith v. Campbell , 781 F.Supp. 521, 530 (M.D. Tenn. 1991), aff’d without an opinion in 961 F .2d 1578 (6th Cir. 1992), cert. denied 113 S.Ct. 423 (1992); United St ates v. DiS alvo , 726 F.Supp. 596 (E.D. Pa. 1989) ; Siciliano v. Vose , 834 F.2d 29 (lst Cir. 1987). 8 “[a]t this point in the dev elopment of our adversary system, it cannot be doubted that a defendant in a criminal cas e has the right to take the w itness stand and to testify in his or her ow

n defense.” 483 U.S. at 49, 107 S.Ct . at 2708.

A defendant’s right to testify at a criminal trial or

iginates in three provisions of the United S tates Constitution. 7 The Fourteenth Amendment’s guarantee of due process of law includes the right to be heard and to offer testimony. Rock v. Arkansas , 483 U.S. at 51, 107 S.Ct. at 2709; Faretta v. California , 422 U.S. at 819 n.15, 95 S.Ct. at 2533 n. 15. The Sixth Amendment, which grants an accus

ed the right to call w

itnesses, logically

includes the right to testify at trial if the acc

used decides it would be a dvantageous to place his or her testimony before the jury

. Rock v. Arkansas , 483 U.S. at 52, 107 S.Ct. at 2709. Moreover, the Court r

ecognized that, under the S ixth Amendment, the right t o present the accused’s ver sion of events in the accused’ s own words is ev en more fundamental than the right to self-represe ntation, a right “necessarily implied by the structure of the amendment.” Id . (quoting Faretta v. California , 422 U.S. at 81 9, 95 S.Ct . at 2533 ). The righ t to testi fy is also “ a necessa ry corollar y” to the Fifth Amendment’s guarantee against compelled self-incri mination. Id

.8 Since 1858 the defendant’s right to be heard has been protected

by statute as well:

Speedy trial -- Right to be heard. -- In all criminal prosecutions, the accused is entitled to a speedy trial, and to be heard in person and by counsel. Tenn. Code Ann. § 40-14-101 (1990). 9 Tennessee has long held that an acc used’s right to be heard a t trial is protected under Article 1, Section 9 of the Tennesse e Constitution which states, in pertinent part, “[t]hat in all criminal p rosecutions, the accused hath the right to be heard by hi mself and his counsel. . . .” 8 Because the provision w as drafted in 1776 when a criminal defendant did no t have the right to testify in his own behalf, our supreme court at first interpreted this p rovision to grant an accused the right to make an u nsworn statement to the jur y but not the right to testify. Hopkins & Hoopers v. S tate , 78 Tenn. 204, 206 (1882); Wilson v. State

. 50 Tenn. 232, 242-243 (1871). A hundred years af ter Wilson , in Campbel l v. State , 469 S.W.2d 506, (Tenn. Crim. App.), cert. denied (Tenn. 1971), the court noted that under the Tennessee Constitution a person accused of a crime has the right to be heard in hi s own defense, and that

[w]hile it is true that no person accused of crime may be compelled to testify at his trial, he may do so if he chooses; and such evidence i s competent if he desires to introduce the ev idence in his own behalf or in any event if he consents to its introduction. 469 S.W.2d at 509. Campbell makes no reference to either Wilson v. State or Hopkins & Hoopers v. S tate . Five years lat

er, the supreme court rev isited the issue and specifically overruled the holdings of both Wilson and Hopkins

. State v. Burkhart , 541 S.W.2d 365, 369 (Tenn.1976). In Burkhart , the court held that a criminal defendant has the right to self-representatio n but no right to make unsworn statements to the ju ry. 541 S.W.2d at 371-372. The court reasoned that since criminal defendants had been recognized by s

tatute and by actual9 Virtually every state court that has consider ed the issue has made similar fin dings based

on either th eir state c

onstitution s or the U.S . Supreme Court’s dicta in Rock v. Arkansas , 483 U.S. at 49-52; 107 S.Ct. at 2508-2709 and Faretta v. California , 422 U.S. 806, 829-834, 95 S.Ct. 2525, 2538-41 (1975). See, e.g., LaVigne v. State , 812 P.2d 217, 219 (Alaska, 1991) ; People v. Mosqueda , 5 Cal. App.3d 540, 545, 85 Cal.Rptr. 346, 348 (1970); People v. Curtis , 681 P.2d 504, 509-510 (Colo. 1984) ; Boyd v. United States , 586 A.2d 670, 672 (D.C. App. 1991); Gill v. State , 632 So.2d 660, 662 (Fla.App. 1994) ; King v. State , 391 S.E.2d 660, 662 (Ga. 1990); Tachibana v. State , 900 P.2d 1293, 1305 (Haw. 1995); Aragon v. State , 760 P.2d 1174, 1178 (Idaho, 1988); People v. Raso , 602 N.E. 2d 53, 55 (Ill. App.1992); Taylor v. State , 843 P.2d 682, 687 (Kan. 1992); Commonwealth v. Waters , 506 N.E. 2d 859, 864-865 (Mass. 1987); People v. Simmons , 364 N.W.2d 783, 784 (Mich. App. 1985); State v. Rosillo , 281 N.W.2d 877, 878 (Minn. 1979); Culberson v. State , 412 So.2d 1184, 1186 (Miss. 1982); State v. Ha mm , 818 P.2d 830, 833 (Mont. 1991); Ingle v. State , 546 P.2d 598, 599 (Nev. 1976) ; State v. Savage , 577 A.2d 455, 471 (N.J. 1990); State v. Duran , 731 P.2d 374, 376 (N.M. App. 1986) ; State v. Ray , 427 S.E.2d 171, 174 (S.C. 1993); State v. El-Tabech , 453 N.W.2d 91, 95 (Neb. 1990); State v. Brooks , 833 P.2d 362, 364 (Utah App. 1992); State v. Mumley , 571 A.2d 44, 45 (Vt. 1989); State v. Thomas , 910 P.2d 475, 477 (Wash. 1996); State v. Neuman , 371 S.E.2d 77, 80-81(W.Va. 1988); State v. Albright , 291 N.W.2d 487, 492 (Wis. 1980); Sanchez v. State , 841 P.2d 85, 87 (Wyo. 1992). 10 practice as competent witnesses, the better interpr etation of Article 1, Section 9 is that: In all criminal prosecutions the accused has the right

to testify as a witness in his own behalf and to be represented by counsel. Id . at 371(emphasis added). In State v. Frazier, this court cited the Tenness ee Constitution and Campbell v. State in support of it’s statement that “[i]n Tennessee, a person accused of a crime is constitut ionally entitled to testify in his own behalf.” State v. Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984). See also State v. Danny Evans , No. 02C01-9205-CR-00109, slip op. at 6-8 (Tenn. Crim. App., Jackson, Nov. 10, 1993). 9 The Tennessee Court of Criminal Appeals recognized the right to testify as bei ng inherent in Articl e 1, Section 9 of the Tennessee Constitution in 1971, Campbell v. State , 469 S.W.2d at 509, and the Tennessee Supreme Court ove rruled contradictory precedent in 1975. Burkhart v. State , 541 S.W.2d at 369. We reaffirm that, although the testimony may not be compelled, the constitutions of the United States and the State of10 See, e.g., United St ates v. Boyd , 86 F.3d 719, 723 (7th Cir. 1996);

United States v. Ortiz , 82 F.3d 1066, 1071 (D.C. Ci r. 1996); United St ates v. Pennycooke , 65 F.3d 9, 11 (3rd. Cir.1995); United States v. Joelson , 7 F.3d 11 Tennessee recognize that a criminal defendant has the right to testify for the defense at trial.

B. A Right Personal to the Defendant

The United States Constitution grants essentially two categories of rights: those that defense couns el may waive on the defendant’s behalf and those th at are so f undame ntal and persona l that onl y the def endant m ay waive them. See Henry v. Miss issippi , 379 U.S. 443, 85 S.Ct. 546 (1965). Those rights included in the former are generally matters of trial strategy and tactics such as what evidence should be introduced, what stipulations should be made, and what pre-trial moti ons should be filed. United States v. Teague , 953 F.2d 1525, 1531 (11th Cir. 1992). Although the United States Supr eme Court has not directly addressed the issue, the Court stated in dicta that “the accused has the ultimate authority to make c ertain fundamental decisions regarding the case, as to whether to plead guil ty, waive a jur

y, testify in his or her own behalf , or take an appeal.” Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983)(emphasis added). The ri ght to testify is a neces sary corollary

to the Fifth Amendment guarantee against compel led testimony, Rock v. Arkansas , 483 U.S. at 52, 107 S.Ct. at 2709, and “ 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 (1971).

The vast majority of federal c ourts that have considered the issue have concluded that the rig ht to testify is a fundamental ri ght that is personal to the defendant. 10 The most serious decisions in a criminal case are w hether to174, 177 (9th Cir. 1993); United States v. Teague , 953 F.2d 1525, 1532 (11th

Cir. 1992); United States v. Scott , 909 F.2d 488, 490(11th Cir. 1 990); Don v. Nix , 886 F.2d 203, 207(8th Cir. 1989) ; Siciliano v. Vose , 834 F.2d 29 (1st Cir. 1987); Campos v. United States , 930 F.Supp. 787, 790 (E.D.N.Y . 1996); Porter v. Singletary , 883 F.Supp. 660, 666 (M.D. F la. 1995); Smith v. Campbell , 781 F.Supp. 521, 530 (M.D. Tenn. 1991) , aff’d by memorandum in 961 F.2d 1578 (6th Cir. 1992); United St ates v. DiS alvo , 726 F.Supp. 596 (E.D. Pa. 1989).

11 LaVigne v. State , 812 P.2d 217, 219-220 (Alaska, 1 991); People v. Curtis , 681 P.2d 504, 509-510 (Colo. 1984) ; Boyd v. United States , 586 A.2d 670, 673 (D.C. App. 1991); Gill v. State , 632 So.2d 660 (Fla. App. 1994); Tachibana v. State , 900 P.2d 1293, 1299 (Haw. 1995) ; Aragon v. State , 760 P.2d 1174, 1179 (Idaho, 1988); People v. Raso , 602 N.E.2d 53, 56 (Ill. App. 1992); Commonwealth v. Freeman , 564 N.E. 2d 11, 14 (Mass. Ap p. 1990); State v. Rosillo , 281 N.W.2d 877, 878-79 (Minn. 1979); Culberson v. State , 412 So.2d 1184 (Miss. 1982); Ingle v. State , 546 P.2d 598 (Nev. 1976); State v. Savage , 577 A.2d 455, 471 ( N. J. 1990); State v. Ray , 427 S.E.2d 171, 174 (S.C. 1993); State v. Brooks , 833 P.2d 362, 364 (Utah App. 1992); State v. Mumley , 571 A.2d 44,45 (Vt. 1989); State v. Thomas , 910 P.2d 475, 477 (Wash. 1996); State v. Neuman , 371 S.E. 2d 77, 81 (W.Va. 1988); Sanchez v. State , 841 P.2d 85, 89 (Wyo. 1992). In a few states, howev er, courts have held that,absent exceptional circumstances, decisions to put on a defense or to waiv e a defendant’s right against self-incrimination at trial are strategic choices which counsel may make without defendant’s consent. State v, Rodriguez , 612 P.2 d 484, 49 0 (Ariz. 1980); State v. Mann , 934 P.2d 784, 789 (Ariz. 1 997); King v. State , 391 S.E.2d 660, 662 (Ga. 1990); State v. Albright , 291 N.W.2d 487, 492 (Wis. 1980). 12 have coun sel or repr esent on eself, t o stand t rial or to p lead guilt y, to be tri ed by a judge or a jury, and t

o tell one’s story or

to keep silent, United St ates v. Boyd , 86 F.3d 719, 723 (7th Cir. 1996) , and the decision whether to testify may be the single most important factor in a criminal case. United States v. Teague , 953 F.2d 1525, 1533 (11th Cir. 1992) . “In fact, the most important w itness for the defense in many criminal cases is the defendant him self,” Rock v. Arkansas , 483 U.S. 44, 52, 107 S.Ct. 2704, 2709 (1987), and as the Court has noted in another context, ”[t]he most persuasive counsel may not be able to spea k for a defendant as the defendan t might, with halting eloquence, speak for himself.” Green v. United States , 365 U.S. 301, 304, 81 S.Ct. 653, 6 55 (1961)(plurality opinion). Most state c ourts that have considered the issue have concluded that the accused’s right to testify is both fundamental and per sonal and may be waived only by

the defendant. 1113 This court, relying

upon the American Bar Associa tion Standards for Criminal Justice , has previously found that the decision as to whether an accused should testify at t rial belongs to the accus ed. Vermilye v. State , 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987). The standards provide: (a) Certain decisions

relating to the conduct of the case are ultimately for defense counsel. The decisions which are t

o be made by the accused after full consultation with c

ounsel are: (I) what plea to enter, (ii) whether to w

aive jury trial ; and (iii) whether to testify in his or her ow n behalf. 1 Standards for Criminal Justice Standard 4-5.2(a) (2d ed. 1980) . The commentary to this section states that “because of the fundamental natur e of these three decisions, so crucial to the accused’s fate, the accu sed must make the decisions.” Id . commentary. In accordance with the weight of authority in the federal courts, in the decisions of our sister states, and in our prior decisions, we hold that the right to testify in one’s own behalf in a criminal trial is a fundamental and personal right that may be waived only

by the accused.

C. Waiver of the Right

We must next consider what constitutes waiver of the rig ht to testify, what obligations defense counsel has and whether the trial court is required to determine, sua sponte , whether the defendant is v oluntarily and knowingly w

aiving the right.

In an unpublished case, one panel of thi s court stated that “the defendant’s conduct provides a sufficient basis from which to infer that the right to testify has been waiv ed,” and that “the trial co urt had no duty to advis e the defendant of his right to testify , nor . . . to ensure that on th e record waiver h ad occurred.” State v. Danny L. Ev ans , No. 02C01-9205-CR-00109, slip op. at 1112 The Evans court held that since the peti tioner had neither alleged nor proven that the alleged constitutional violation had an adverse effe ct on his case he was not entitled t o post-conviction rel ief.

13 LaVigne v. State , 812 P.2d 217 (Alaska, 1991); People v. Curtis , 681 P.2d 504 (Colo. 1984); Boyd v. United States , 586 A.2d 670 (D.C. App. 1991); Culberson v. State , 412 So. 2d 1184 (Miss. 1982) ; Brown v. State , 453 S.E. 2d 251 (S.C. 1994) (only in capital cases); State v. Neuman , 371 S.E.2d 77 (W.Va. 1988); Tachibana v. State , 900 P.2d 1293 (Haw. 1995).

14 (Tenn. Crim. App., Jackson, N ov. 10, 1993), perm. app. denied (Tenn. 1994). 12 The panel relied solely up on the decision in United States v. Marti nez , 883 F.2d 750 (9th Cir. 1989).

The Ninth Circuit decided Martinez in 1989 only two y

ears after the Supreme Court’s decision i n Rock v. Arkansas , and a number of the federal courts of appeals and various state courts have ruled on this issue since that time. Moreover, the N inth Circuit vacat ed Martinez

on other grounds in United States v. Martinez , 928 F.2d 1470 (9th Cir. 1991). Therefore, we deem it prudent to reexamine the issue in light of more recent decisions.

Courts throughout the countr y have generally

adopted one of three differing approaches to determine whether a defendant has effectively waived the right to testify. The general rule is that a personal and fundamental right may be waived only if there is evidence in the r ecord demonstrating “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). A number of our sist er states require or strongly encourage the trial court to engage each defendant in an on-the record colloquy to ensure that any wai ver of the defendant’s right t o testify is knowing an d volunta ry. 13 Other courts have held that it may be “advisable,” at least

under some circumstances, for t rial courts to place a14 United States v. Ortiz, 82 F.3d 1066, 1071 ( D.C. Cir. 1996)(may be advisable under some cir cumstances); United States v. Pennycooke , 65 F.3d 9,13 (3d Cir. 1995)(w

ithin discretion of trial

court in certain cir

cumstances); State v. Gulbrandson , 906 P.2d 579, 598 (Ariz. 1 995); Woodward v. United States , 626 A.2d 911, 915 (D.C. App. 1993) ; Gill v. State , 632 So.2d 660, 662 (Fla. App. 1994); State v. Hoffman , 778 P.2d 811, 814 (Idaho App. 1989); Phillips v. State , 782 P.2d 381, 382 (Nev. 1989); State v. Mumley , 5 71 A. 2d 44 (V t. 19 89 ). We note that one panel on the Tennessee Cour t of Criminal Appeals has adv ised that the defendant’s waiver of the right to testify be p laced on the record. Walter Keith Johnson v. State , No. 1037 (Tenn. Crim. App., Knox ville, Sept. 2, 1992). However, the Tennessee Supr eme Court granted permissi on to appeal and affirmed the case per curiam on Feb. 2 2, 1994. The court ordered that the opinion not be published. 15 defendant’s waiver on the r ecord. 14 These courts reason that sinc e the rights at issue are fundamental to a fair trial, the courts have, unde r Johnson v. Zerbst , “a serious a nd weighty re sponsib ility” to de termine whether th e accused intellige ntly and competently waiv

ed the right. Boyd v. United States , 586 A.2d 670, 675 (D.C. App. 1991). In addition, proponents contend, ad visement on the record will preclude post-convicti on disputes between the defendant and c ounsel over the issues, and, if the issue does a rise, the record wi ll facilitate post-conv iction and appellate review. People v. Curtis , 681 P.2d 504, 515 (Colo. 1984). Under this approach, a trial judge c onducts an inquiry i nto the circumstances of the w aiver outside the jury’s pr

esence if the defense rests without calling the defendant to the stand. Curtis , 681 P.2d at 514-515.

Other cou rts have re jected th e colloquy r equireme nt for two reasons. First, vi rtually every court considering the i ssue has concluded that a trial court is under no constitutional requir ement to advise a defendant of the right to testify. See e.g. , United States v. Ortiz , 82 F.3d 1066, 1071 (D.C. Cir. 1996); United States v. Pennycooke , 65 F.3d 9, 11 (3d Cir. 1995) ; United States v. Joelson , 7 F.3d 174, 177 (9th Cir. 1 993); United States v. Teague , 953 F.2d 1525, 1532 n. 8 ( 11th Cir. 1992) . The right to testify i s correlative w ith the right to remain silent. The right to remain silent is w aived by the act of taking the15 See also Liegakos v. Cooke , 106 F.3d 1381, 1386 (7th Cir.1997);

United States v. Pennycooke , 65 F.3d 9, 13 (3d Cir. 1995) ; United St ates v. Joelson , 7 F.3d 174, 178 (9th Cir. 1 993); United States v. Scott , 909 F.2d 488, 492-93 (11th Cir. 1990); Siciliano v. Vose , 834 F.2d 29, 30 (1st Cir.1987); King v. State , 391 S.E.2d 660, 662 (Ga. App. 1990); Aragon v. State , 760 P.2d 1174, 1178 (Ida. 1988); People v. Simmons , 364 N.W.2d 783, 785 (Mich. App. 1985).

16 United St ates v. Boyd , 86 F.3d 719 (7th Cir. 1996) (dicta); United States v. Edwards , 897 F.2d 445 (9th Cir. 1990) ; State v. Gulbrandson , 906 P.2d 579 (Ariz. 1995); People v. Bradford , 929 P.2d 544 (Calif. 1997); Taylor v. State , 843 P.2d 682 (Kan. 1992); State v. Ha mm , 818 P.2d 830 (Mont. 1991); People v. Simmons , 364 N.W.2d 783 (Mich. App. 1985); State v. Albright , 291 N.W.2d 487 (Wis. 1980). 16 stand, and the trial court i s not required to ascer tain for the record whether the defendant is knowingly and voluntarily w

aiving those rig hts. State v. Thomas , 910 P.2d 475, 479 (Wash. 1996); Commonwealth v. Freeman , 564 N.E.2d 11, 15 (Mass. App. 1990). Second, courts have rejected the requirement fearing that a formal waiver r

equirement “might prov oke substantial judicial participation that could frustrate a thoughtfull y considered decision b y the defendant and counsel. . . ,” People v. Simmons , 364 N.W. 2d 783, 785 (Mich.App. 1985)(quot ing from State v.Albright , 291 N.W.2d 487, 490 (Wis. 1980)), and a discussion between the trial judge and the accused “might have the undesirable effect of influencing the decision no t to testify.” State v. Thomas , 910 P.2d at 479. 15

A few courts have adopted the so-called “demand” rule. In these jurisdictions, a defendant w ho fails to complain about the ri ght to testify during trial is conclusiv

ely presumed to have w aived that right. 16 These courts will not entertain a post-trial c

hallenge based on the rig ht to testify unless the defendant brought the matter to the attenti on of the trial court. United States v. Edwar ds , 897 F.2d 445, 447 (9th Cir. 1990) . The demand rule is justified in several ways. The right may be view

ed not as “fundamental” but a matter of tr ial strategy, and therefore counsel may wai ve the right without consulting the defendant. State v.17

Rodriguez , 612 P.2d 484, 489-91(Ariz . 1980); King v. State , 391 S.E.2d 660, 662 (Ga. App. 1990). Some courts hav e presumed that a defendant, educated by televisio n and pas t courtro om experi ences, h as knowled ge of his r ight to te stify. United States v. Edwar ds , 897 F.2d 445, 447 (9th Cir. 1990); United St ates v. Martinez , 883 F.2d 750, 761 (9th Cir. 1989), vacated on other grounds , 928 F.2d 1470 (9th Cir. 1991); Taylor v. State , 843 P.2d 682, 688 (Kan. 1992). At least one court has concluded that, bec ause of the peculiar nature of this right, it does not “attach” unless the accu sed claims it at trial. State v. Albright , 291 N.W.2d 487, 490-491 (Wis. 1980); see also United States v. Teague , 953 F.2d 1525, 1537 (11th Cir. 1992)(concurrence by J. Birch).

Opponents of the “demand” rule argue it is fatally flawed because it ignores the basic real ities that both trial jud ges and defendants face. Tachibana v. State , 900 P.2d 1293 (Haw. 1995); Boyd v. United States , 586 A.2d 670, 677 (D.C. App. 1991). Requi ring that a defendant address the court directly duri ng the trial and express the desire to testify places a heavy burden on the defendant. United States v. Ortiz , 82 F.3d 1066, 1071 (D.C . 1996). Even if a defendant is aware of the right to testify, the defendant may not be aware that an objection must be made or that the r ight will forev

er be lost. Boyd , 586 A.2d at 677. Because the waiver of a fundamental constitutional rig ht must be “the intentional relinquis hment or abandonment of a known rig ht or privilege,” finding waiver upon a presumpti on of knowledge may be probl ematic. Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). Moreover, these courts note, it is a reality

of the courtroom that defendants who s peak out of turn at trial are often quick ly reprimanded an d instructed to address the cou rt only through counsel. United States v. Teague , 908 F.2d 752, 759 (11th Cir. 1990).17 See, e.g. Liegakos v. Cooke , 106 F.3d 1381 (7th Cir. 1997) ;

United States v. Ortiz , 82 F.3d 1066 (D.C. Cir. 1996); United St ates v. Pennycooke , 65 F.3d 9 (3d Cir. 1995); United States v. Teague , 953 F.2d 1525 (11th Circ. 1992); Underwood v. Clark , 939 F.2d 473 (7th Cir. 1991) ; Siciliano v. Vose , 834 F.2d 29 (1st Cir. 1987) ; Campos v. United States , 930 F.Supp. 787 (E.D.N.Y. 1996); Porter v. Singletary , 883 F.Supp. 660 (M.D.Fla.1995); Smith v. Campbell , 781 F.Supp. 521 (M.D. Tenn. 1991) ; United St ates v. DiS alvo , 726 F.Supp. 596 (E.D.Pa. 1989); People v. Mosqueda , 5 Cal.App.3d 540, 85 Cal. Rptr. 346 (1970); Gill v. State , 632 So.2d 660 (Fla. App. 1994); Common wealth v. Freeman , 564 N.E.2d 11 (Mass. App. 1990 ); State v. Rosillo , 281 N.W. 877 (Minn. 1979); State v. Savage , 577 A.2d 455 (N.J. 1990); State v. Brooks , 833 P.2d 362 (Utah. App. 1992); Brown v. State , 453 S.E.2d 251 (S.C. 1994); State v. Mumley , 571 A.2d 44 (Vt. 1989); State v. Thomas , 910 P.2d 475 (Wash. 1996). 18

A third gro up of cou rts has de vised a com promise between t he two approaches previously

described. This method has been c alled the “post-trial challenge approach.” Boyd v. State , 586 A.2d 670, 677 (D.C. App. 1991) . In this approach, the trial j udge need not, sua sponte, question the defendant during the trial, but, e

ven if the defendant does not bring the matter to the attention of the trial court, th e defendan t is free to bring a post-trial challe nge generally based on the ineffective assistance of counsel. Th is approach appears to be the practice in the largest number of juris dictions, both state and federal. 17 These courts hold that defense couns el has the responsibility to advise the defendant of the reciproc al rights to testify or to remain silent and to explain the tactical adv antages or disadvantag es of each, and, although the decision is one that is fraug ht with implications for defense strategy, the ulti mate decision rests with

the defendant. State v. Savage , 577 A.2d 455, 473 (N.J. 1990). The duty of providi ng advice and ensuring that any waiver of the right to testify is knowing and intelligent rests not with the trial court, but with defense counsel. United States v. Pennycooke , 65 F.3d 9, 12 (11th Cir. 1995).

The courts that follow the demand r ule and those that adhere to the post-trial challenge approach agree that a trial court may presume that the18 Vermilye was decided before the decis ion in Rock v. Arkansas

.

The court discussed neither the constitutionality of the right nor the issue of waiver but held, base

d on A.B.A. Standards of Criminal Justice, that the decision to testify or to

remain silent should be made by the defendant. 754 S.W.2d at 88. 19 defendant has knowingly and voluntarily w aived the right to tes

tify from the defendant’s conduct. However, a major difference be tween the two is that those that follow the “demand” rule find that the def endant’s silence at trial not only waives the constitutional right but denies th e defendant the possibility of ev er rebutting that presumption. The post-trial challenge approach allows a defendant to demonstrate, either on dir ect appeal or in a post-conv iction proceeding, that his waiver was neither knowing nor voluntary because defense counsel was ineffective.

Although Tenness ee courts have not a ddressed this issue directly, the post-trial challenge approach is most consistent with the manner in which Tennessee courts have resol ved the question of whether an accused has been denied the right to testify . In Vermilye v. State , 754 S.W.2d 82 (Tenn. Crim. App. 1987), a post-convicti on petitioner claimed ineffectiv e assistance of counsel due to the failure of defense counsel to prepar e him to testify at trial and thereby denied h im the righ t to testi fy effe ctively. 18 This court held that counsel was not ineffective as he had met with the petitioner many times, the reco rd demonstrated that the petitioner ha d made the decision to testify,and the petitioner had failed to show how his attorney cou ld have better prepared hi m to testify. Id . at 88. In an unpublished case,a panel of this court held that, under Tennessee law, the trial c ourt is not required to

hold, sua sponte , a “jury-out” hearing for the purpose of advi sing the defendant on the record that he has the19 In Evans , the court recogniz ed the practice of many crimi nal defense lawyers to req uest a “jury-out” hear ing in which the attor

ney places the defendant on the stand and questions the defendant about the decision on the record. Slip op. at 10. We believe thi s to be a prudent practice i n many instances. Trial courts have it within their discretion to allow such hearing to take place when defense counsel req uests it or extraordi nary circumstances al ert the trial court to the necessi ty.

20 Our research uncovered two other cases that hav e some bearing on this issue. In a post-c onviction proceeding,a panel of this court found that defense counsel’s belated remarks did not suffice to show an intel ligent and knowing waiv

er of the right to testify

and found that counsel had denied the petitioner the right to testify at trial. Walter Keith Johnson v. State , No. 1037, slip op. at 6 (Tenn. Crim. Ap p., Knoxville, Sept. 2, 1992), perm. to appeal granted (Tenn. 1993), aff’d per curiam in Walter Keith Johnson v. State , No. 03S01-9306-CR-00032 (Tenn., Knox ville, Feb. 22, 1994) ( not for publication). In its discussion of the issue, the panel recommende d that defense counsel place the defendant’s decision on the rec ord. Id . at 4. In a second case, the U nited States District Court for the Middle District of Tennessee considered whether a defendant’s constitutional rig hts had been violated by the trial judge’s refusal to allow him to testify after the state’s rebuttal case ha d ended. Smith v. Campbell , 781 F.Supp. 521, 530 (M.D.Tenn. 1991) The court concluded that the defendant had knowingly and v

oluntarily waiv

ed his right to testify

upon advice of counsel and that the trial court had not erred in refusing to all ow him to testify after the state’s r ebuttal because the def endant’ s proff ered test imony woul d not have been appropriate as rebuttal. Id

. 20 right to testify or to remain silent and determining the defendant’s wishes. 19 State v. Danny L. Ev

ans , No. 02C01-9205-CR-00 109, slip op . at 10 (Tenn. Crim. App., Jackson, Nov. 10, 1993) , perm. app. denied (Tenn. 1994). At the hearing, petitioner admitt ed that he had discussed testify ing with his counsel

and that counsel did not tell hi m not to testify. Evans , slip op. at 6. The court noted that the petitioner was “no stranger to the crimi nal justice system” an d affirmed the trial court’s concl usion that the defendant’s conduct pr ovided a sufficient basis from which to infer tha t he had waived the ri ght without the necessi ty of holding an on-the-record inquiry. Evans , slip op. at 10 -11. 20 Both Vermilye and Evans were post-convic tion proceedings in w

hich the petitioners alleged that trial counsel had been ineffe ctive by den ying them t he right to testify o n their own behalf. Neither had raised the issue in the trial court, and, in both insta nces, this21

court concluded that the recor d contained sufficient proof to demonstrate that the defendant had made the decision based on adv ice of counsel.

For the reasons stated abov e, we affirm that in Tennessee the tr ial court is not required to engage each defendant, sua sponte , in an on-the record colloquy to ensure that any waiver of the defendant’ s right to testify i s knowing and voluntary. Because o f the delicate balance between a defendant’s right to remain silent and his equal ly fundamental right to tes tify, Campbell v. State , 469 S.W.2d 506, 509 (Tenn. Crim. App. 1971), we bel ieve that the responsibil ity for informing the defendant of this rig ht lies with defense counsel . A defendant should personally make the decision whether to testify after receiving counsel’s careful and thorough advic e as to the benefits and detriments of pl acing the defendant’s testimony before the jur y. Absent any indications to the contrary, a trial judge may pres ume from the defendant’s conduct that the defendant persona lly mad e a knowing and intell igent d ecisio n to test ify or n ot to tes tify upon the advice of competent counsel.However, in acc ordance with Tennessee case law and that of numerous federal and state jurisdictions,the defendant may attempt to rebut that presumption i n a post-trial challeng e even if the defendant did not bring the matter to the trial judge’s attenti on during the trial. See , e.g. , United States v. Pennycooke , 65 F.3d 9, 13 (3rd Cir. 1995); United St ates v. Teague , 953 F.2d 1525, 1534 (11th Cir.1992); People v. Bradford , 929 P.2d 544, 574 (Cal. 1997); King v. State , 391 S.E.2d 660, 662 (Ga. App. 1990); Commonwealth v. Freeman , 564 N.E. 2d 11, 14 (Mass. Ap p. 1990); State v. Savage , 577 A.2d 455, 473 (N.J. 1990).

II. Application of the law to the facts of this case21 The situation would have precluded much discussion betw een any defendant and attorney, but for this p articular defendant, who is deaf and partially blind in addition to being confined to a wheel chair, his attorney’s pronouncement left him with li ttle opportunity to objec t.

22 The issue of whether defense counsel rested his case without advising and consulti ng with the defendant is ultimately a question of fact. Smith v. Campbell , 781 F.Supp. 521, 531(M.D. Tenn. 199 1). Both Napoleon Momon and the attorney who represented him at trial tes tified that the attorney had decided that Momon would not testify and that the attorney informed Momon through his son as they were reentering the courtroom. Although the attor ney explained to the defendant’s son that two jurors in the previous trial had not found Momon to be credible, the attor ney clearly stated that he was passing on the information rather than giving advice upon which the defendant cou ld make his own decision. Mo reover, since the defendant w as notified of the decision at the door to the courtroom, there was little if any opportunity for him to engage in any discussion with his attorney. 21

In his written findings of fact, the post-convictio n judge found that trial counsel made the decision not to call the defend ant to the stand. However, the judge erroneously determined that since the decis ion was a matter of trial strategy, counsel was not ineffective. Because the right to testify is a fundamental constitutional rig ht that is personal to the defendant, only the defendant may waive that right. Although the trial judge was justified in presuming at trial that the defendant had knowingly and intelligently waived his right to testify, uncontradicted testimony at the hearing conclusively demonstr

ates tha t his at torney neither advise d him tha

t he had t he right to testify if he so desired nor discuss ed with him the advantag es and disadvantages that might flow from his decisi on. Counsel knew that the d efendant’s statements22 Counsel mentioned the inconsist ent statements in his opening and attempted to explain them away as natural given the c

onditions under which the shooting occurred and length of time between the two statements.

23 But see , Boyd v. United States , 586 A.2d 670, 673 (D.C.App. 1991) ( Chapman standard inapplicable w here right is desig ned to protect human dignity); State v. Rosillo , 281 N.W. 2d 877, 879 (Minn. 1979) (denial of the right 23 were inconsistent in some regards and that a letter from Momon to his sister-i nlaw cast the defendant in an unfav orable light. 22 Yet he did not raise the question of Momon’s testimony until the state’s proof was complete or nearly complete. In fact, the record in dicates that his preparati ons for the second trial did not include meeting w ith his client. In other words, trial counsel never informed the defen dant of hi s ultim ate rig ht to decide whe ther or not to te stify and failed to consult with and advise his client on what may be the single most important decision made at tri al. Boyd v. United States , 586 A.2d 670, 673 (D.C.App. 1991). Counsel,despite the directives of the American Bar Association’s Standards of Cr iminal Justice and the pronounc ements of the Tennessee Supreme Court in Campbell and Burkhart and the holding of this court in Vermilye , apparently believe d that it was his prer

ogative to make the decision as to whether the petitioner would testify. In this respect, counsel’s conduct “fell below an objective standard of reasonableness. ” Stricklan d v. Washington , 466 U.S. 668, 690; 104 S.Ct. 2052, 2065 (1984).

Our inquiry, how

ever, does not stop wi

th the first prong of the Strickland standard. We must now consider whether counse l’s error was so serious as to deprive the defendant of a fair trial and to call into question the reliability of the outcome. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; United States v. Teague , 935 F.2d 1525, 1534, (11th Cir. 1992); Campos v. United States , 930 F.Supp. 787, 793 (E.D.N.Y . 1996); Porter v. Singletary , 883 F.Supp. 660, 667 (M.D. Fla. 1995). 23to testify is never har mless error). We note that, in Campbell v. State , the Court of Criminal Appeals found the tri al court’s failure to all ow certain testimony by the defendants to be “harmless beyond a reasona ble doubt” under Chapman v. California , 386 U.S. 18, 87 S.Ct. 824 (1967)

. Campbell , 469 S.W.2d at 509. However Campbell was a direct appeal and involved an action of the trial court rather than a collateral attack based on the ineff ective assistance of counsel. 24 A Tennessee case, although not dir ectly on point, provi des guidance in our determinati on of whether Strickland’ s second prong has been satisfied. In State v. Zimmerman , 823 S.W.2d 220 (Te nn. Crim. App. 1991), this court considered on direct appeal whether trial counsel had been inef fective in that, after he had told the jury in his opening statement that the defendant and other witnesses wou ld testify about the “batter ed wife syndrome,” he ch anged his mind and rested without putting on any proof. Coun sel then referred to the absent evidence again in his closing argument. Id . at 225-226. Unlike the attorney in the present ca se, defense counsel in Zimmerman discussed the matter with his clie nt and she confirmed her approval of his decision in a jury -out hearing. Zimmerman , 823 S.W.2d at 221. There was, therefore, no depri vation of the constitutional right to testify. The issue addres sed is whether the attorney’s decision to rest without putting on the defendant or several other witnesses was ineffecti ve. In determining that counsel had been ineffective, the Zimmerman court cited five factors which tend to indicate inef fective assistance when defense counsel fails to cal l a defendant to the stand:

(1) only the victim and the defendant were present when the offense was committed; (2) only the defendant could present a “full version of [the defendant’s] theory of the facts”; (3) the defendant’s testimony could not be impeached by prior criminal convictions; (4) the defendant could give an acc ount of the relationship with the victim; and25 (5) the attorney had let in obj ectionable, prejudicial testimony with the intention of clarifying it with the testimony of the defendant. State v. Zimmerman , 823 S.W.2d at 227 ( quoting fr

om State v. Gfeller , No. 87- 59-III (Tenn. Crim. App., Nashville, July 24, 1987). The court concluded that a ll five of these factors were applicable and that, in addition, other evidence favorable to the defendant would ha ve come into the record had the other witnesses testified as pl anned Id

.

We recognize the special nature of a defendant’s testimony in a criminal trial. A defendant’s testimony gives the jury “an immediate and visible impression of him as a person” and may “color their view of the entire case against him. “ People v. Curtis , 681 P.2d 504, 513 (Colo. 1984). Only the defendant can present direct evi dence of his state of mind, and when an accused takes the stand he has had “his day in court” in the most literal sense. State v. Neuman , 371 S.E.2d 77, 81 (W.Va . 1988). Therefore, a defendant’s testimony is often of greater significance than that of any other witness.

In this case, as in Zimmerman and Gfeller , only the victim and the defendant were present when the offense occurred and only the defendant could present a full version of the defense theory of the facts and testify to his relationship with the victim. If he had testified, he may have been able to blunt the prosecution’s attack on h is credibility i n closing argument by explaining the inconsistencies between his statement to the police and hi s deposition taken in a related civil matter.He may have convi nced the jury that his l etter propositioning his sister-in-law

was inconsequential.This defendant, in particular, who has many physical infirmities, may have colored the jury’s view

of the entire case had he testified. And, as the defendant points out, when he testified at his first trial,26

the jury acquitted him of first degree murder and was unable to return a verdict on second degree murder.

On the other hand, Momon’s theory of the facts was bef ore the jury in his statement to the police and in his deposition. Although there were inconsistencies between the two statements, the incons istencies concerned rather minor points such as whether he put the pistol in the drawer or on the stand beside the bed, or the precise manner in which he w as holding the pistol when he alleged she gr abbed for it. Moreover, i f Momon had testified, the state may have been able to impeach Momon’s credibility with a twenty-year old conviction for manslaughter. The fact that the jury in the first trial could not reach a verdict on second-deg ree murder does not necessari ly mean that the defendant’s testimony would have changed the result i n the second trial. Defendants are not infrequ ently convicted in a second trial des pite having a “hung” jury in the first. The record contains indications that Momon may no t have been a good witne ss. Accord ing to the trial atto rney, he in terviewed t wo jurors after the first tri al. These jurors told him that they had not believed Momon’s story of an accident al shooting, and the trial judge at the sentencing hearing also found Momon to be w ithout remorse and lacking credibility.

Moreover, the record before us lacks sufficient indica tion of what Momon’s testimony woul d have been had he testified. Although he took the stand at the post-conviction hearing, little of hi s testimony reflects w hat he might24 At one point, counsel asked M omon what he told his tria l attorney

about the letter to his sister-in-law in which he invites her to let him “love her just once.” Momon readily admi tted writing the le

tter and his brief remark i mplies that his wife had somehow initiated the communication.

25 See footnote 4 above. 27 have said at trial. 24 The transcript of the first trial is not in the record on appeal. 25 Unlike the jury in Zimmerman , this jury was not led to believe that the de fendant would testify, nor w

ere other witnesses fav orable to the defense silenced by the unilateral decision to r

est without putting on a ny proof. Despite the obv ious importance of any defendant’s testimony, it would be sheer spec ulation to evaluate the potential impact of Momon’s testimony absent some knowledge of what that testimony w

ould have been.

We find, theref ore, that although trial counsel’s performance fell below an objective s

tandard of reasonableness under prev ailing professional norms so that he was not functi oning as "counsel" guaranteed by the United States Constitution, the petitioner has failed to meet his bur den of demonstrating that there is a reasonable pr obability that but for counse l's failure to inform and advise the defendant of his right to testify, the result of th e proceeding would have been different. Strickland , 466 U.S. at 695.

III. Other Allegat ions of Ineffectiv e Assistance of Counsel The pet itioner a lso conte nds that trial coun sel was ine ffecti ve because he failed to raise the theor y of self-defense, because he did not investigate the state’ s witnesses thoroughl y, and because he failed to confer w ith the defendant prior to his second t rial. We have already found that, prio r to the second trial, the attorney failed to inform and advise his client about his right

to testify, but that, on these facts, we are unable to conclude that this deficiency28

deprived the defendant of a fair tria l or created serious q uestions about the validity of the ou tcome. W ith respect to th e other allegatio ns, the trial judge found that the defendant h ad never raised the issue of self-defense with his attorney and that the entire defense was predicated on Momon’ s statement that the shooting was acci dental. The trial judge accredited the attorney’s t estimony and found that the attorney had met w ith the defendant and his son numerous times prior to the first tr ial and that he was sufficientl y familiar with the c

ase at the second trial. After a thor ough review of the rec

ord, we conclude that the evidence does not preponderate against the trial judg e’s findings and that, wi th respect to these matters, tr ial counsel performance was not deficient.

IV. Conclusion

The deci sion to waive

or exer cise th e constitutiona l right to testify must be made by the accused with the thorough and careful adv ice of counsel. In this case, the petitioner ’s trial counsel failed t

o advise him of his constitutional right to testify and made the unilateral decision that the petitione r would not take the stand at the second trial. In this respect, trial counsel’s performance was deficient. However, on this record, we ar e unable to conclude that, but for counsel’s error, there is a reasonable probabilit y that the outcome of the trial would have been different.

We affirm the judgment of the post-conviction cour t.

__________________________ CURWOOD W ITT, Judge

______________________________29

JOHN H. PEAY, Judge

______________________________ JOSEPH M. TIPT ON, Judge