# FILED
March 30, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

NAPOLEON MOMON, ) FOR PUBLICA TION ) Appellant, ) ) v. ) HAMILTON CRIMINAL ) STATE OF TENNESSEE, ) HON. STEPHEN M. BEVIL, ) JUDGE Appellee. ) ) No. E1996-00007-SC-R11-PC ) ) (Post Conviction) For the Appellant: For the Appellee: Stephen M. Goldstein Paul G. Summers Chattanooga, Tennessee Attorney General & Repor ter For Amicus Curiae Michael E. Moore Tennessee Association of Criminal Solicitor General Defense Lawyers Paula R. Voss Daryl J. Brand Knoxville, Tennessee Associate Solicitor Gener al Nashville, Tennessee David M. Siegel Associate Professor William H. Cox, III New England School of Law District Attorney General Boston, Massachusetts 11 th Judicial District Rodney C. Strong Assistant District A

ttorney Chattanooga, Tennessee



### OPIN ION O N PE TITION TO R EHE AR

The appellant, Napoleon Momon, and Amicus Curiae, Tennessee Association of Criminal Defense Lawyers, (“TACD L”), have filed petitions to rehear the opinion of this Court issued on November 15, 1999. Th e appellant asserts in-2-

his petition that the Court erred in finding that the har mless error doctrine may be applied to a violation of the fundamental right to testify. TACDL challenges the voir dire procedure adopted in the opinion and argues that a defe ndant should also be permitted to execute a written waiv er of the right to testify

in place of the on-the-record voir dire waiver. In its response, the State asserts that the Court could modify its decision to allow the defendant to make an on-the-record statement acknowledging that he or she has been advis ed that (1) the defendant has the right not to testify, and if the defendant does not testify, then the jur y (or court) may not draw any inferences from the defend ant’s fa ilure to te stify; (2) the defendant has the right to testify and that if the defendant wishes to exercis

e that right, no one can prev ent the defendant from testifying; (3) the defendant has consulted w ith his or her counsel i n making the decision whether or not to testify; that the defendant has been advised of the advantages an d disadvantages of testify ing; and that the defendant has voluntarily and personally wai

ved the right to testify. According to the State, thi s on-the-record statement appr oach is preferable to a written waive r and also protects the attor ney-client privi lege. However, in the event the Court agrees with TACDL and permits a w ritten waiver, the State asserts that the waiv

er should not be executed unti l after the presentation of the prosecution’s

case-i n-chief

.
After due consideration, we conclude that the appellant’s pe tition to rehear challenging the Court

’s application of the harmless error doctrine to a v

iolation of the right to testify should be and hereby is DENIED. The members of this Court continue to adhere to their or iginal opinions on this

issue.-3- However, the petition to rehear filed by TACDL is well-taken and is GRANTED. We hereby hold that defendants may w aive the right to tes

tify either by signing a written waiver or by engaging in th e voir dire procedur e set out in the initial decision of this C ourt. Cf. Tenn. R. Crim. P. 23 (all owing a written waiver of trial by jury) ; State v. Muse , 967 S.W.2d 764, 768 (Tenn. 1998) (stating that r ight to be present at voir di re of the jury may be pers onally waived by

the defendant either in writing

or on-the-record in open c ourt.”) If a written

waiver is ex

ecuted, the written form must show at a minimum that the defendant knew and understood items 1-3 above. In additi on, we agree with the State that the written w aiver should not be executed before the close of the prosecution’s case- in-chief.
Costs of this petition to rehear is taxed against the State for which executio n may issue if neces sary.

PER CURIAM