If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 22, 2024

v No. 362221

Jackson Circuit Court

ARTIS LEE HOLMES, LC No. 19-002923-FC

Defendant-Appellant.

Before: GARRETT, P.J., and LETICA and MALDONADO, JJ.

GARRETT, P.J. (concurring).

This case highlights why it is advisable that a trial court obtain an on-the-record waiver of 

a defendant’s right to testify. Because our binding precedent requires no such waiver, however, I 

concur with the majority’s decision to affirm defendant’s convictions and remand for the trial court 

to either articulate its reasoning for the upward-departure sentence or resentence defendant.

I. RELEVANT FACTS AND ANALYSIS

The majority correctly describes the unusual circumstances of this case. After the 

prosecution rested its case, and outside the presence of the jury, defense counsel engaged in a voir 

dire of defendant about his decision to testify. Defendant stated that he wanted to testify, and the 

trial court confirmed this decision. The court then recessed for a few minutes before the defense 

called Brianna Sweet, its first and only witness. The defense rested, and there was no discussion 

or inquiry about defendant’s earlier on-the-record statement that he intended to testify. The trial 

court sent the jury home for the day, and the parties briefly discussed the proposed jury 

instructions. The following exchange occurred:

The Court. All right. Take a look at what I put together here and then if 

there’s something that occurs to you overnight let me know first thing in the 

morning and we can make whatever adjustments that we need. Three oh one, duties 

of judge and juries, standard instruction; 3.02, presumption of innocence, burden 
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of proof and reasonable doubt; 303[1], defendant not testifying. I think you have an 

option here [defense counsel]. I can give it or not, at your option.

Defense counsel. Your Honor, we ask the court to give it, the instruction.

The Court. Thank you. [Emphasis added.]

As the record shows, defense counsel asked for the court to give the standard instruction to the 

jury about a defendant not testifying. This exchange occurred less than an hour after defendant 

expressed his intention to testify. These facts strongly suggest that defendant had since “decide[d]

not to testify or acquiesce[d] in his attorney’s decision that he not testify,” which means that right 

to testify “will be deemed waived.” People v Spaulding, 332 Mich App 638, 657; 957 NW2d 843 

(2020) (cleaned up). It is simply implausible that the parties and the trial court would have ignored 

the fact that defendant had less than an hour earlierstated his intention to testify, unless the decision 

had since changed in an off-the-record conversation. Therefore, I agree with the majority that 

defendant has not shown that he was denied his right to testify.2

II. ON-THE-RECORD WAIVER

This entire issue could have been avoided had the trial court taken a formal waiver from 

defendant that he no longer wished to testify. I recognize that this Court has repeatedly held that 

“ ‘there is no requirement in Michigan that there be an on-the-record waiver of a defendant’s right 

to testify.’ ” Spaulding, 332 Mich App at 657, quoting People v Harris, 190 Mich App 652, 661; 

476 NW2d 767 (1991). This Court established the rule in People v Simmons, 140 Mich App 681, 

684; 364 NW2d 783 (1985), but I question the reasoning this Court offered. First, this Court stated 

the obvious: “[s]uch a requirement would necessarily entail the trial court’s advising defendant of 

his right to testify.” Id. Then, this Court explained that “a formal waiver requirement might 

‘provoke substantial judicial participation that could frustrate a thoughtfully considered decision 

by the defendant and counsel who are designing trial strategy.’ ” Id., quoting State v Albright, 96 

Wis 2d 122, 134; 291 NW2d 487 (1980). I am unpersuaded by the concern of “substantial judicial 

participation” in this context. Requiring an on-the-record waiver would entail the trial court 

ensuring that the defendant understands that he has the right to remain silent or to testify, and 

asking the defendant whether he has decided to testify or not. This type of formalized inquiry 

involves far less “judicial participation” than what occurs in the taking of a plea. For instance, 

 

1

It’s clear that the trial court was referring to M Crim JI 3.3, which provides the model jury 

instruction for when a defendant does not testify.

2

I question whether this issue was truly unpreserved given the initial colloquy between defense 

counsel and defendant. But even if defendant preserved the issue and established a violation of 

his right to testify, the constitutional error would be subject to harmless-error review. See People 

v Solomon, 220 Mich App 527, 535; 560 NW2d 651 (1996). Because “[d]efendant has not 

provided us with any offer of proof as to what his testimony might have been” had he testified at 

trial, Spaulding, 332 Mich App at 657, the prosecution can likely show that any error was harmless 

beyond a reasonable doubt.
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before accepting a guilty plea, trial courts must ask or advise the defendant of no less than a dozen 

pieces of information so that the plea is understanding, voluntary, and accurate. MCR 6.302.

Simmons also relied on reasoning from a vacated judgment of the United States Court of 

Appeals for the Ninth Circuit:

“The privilege of a criminal defendant to testify is the other side of the coin on 

which appears the privilege against self-incrimination. In the context of a criminal 

trial, the latter privilege is ‘claimed’ by the defendant’s doing nothing: in fact it 

need not be ‘claimed’ at all. The defendant simply does not testify. If he does not 

elect to testify, he must be deemed to have waived his privilege to do so. It would 

make no sense and, in the light of Griffin v California, 380 US 609; 85 S Ct 1229; 

14 L Ed 2d 106 (1965), it would introduce possible error into the trial to require 

that the court or the prosecutor ask the defendant whether he wishes to testify. That 

is the reason why the defendant must claim his privilege to testify or be deemed to 

have waived it.” [Simmons, 140 Mich App at 684-685, quoting United States v 

Ives, 504 F2d 935, 939-940 (CA 9, 1974), vacated 421 US 944 (1975).]

In Griffin, 380 US at 615, the United States Supreme Court held that the Fifth Amendment of the 

United States Constitution bars the prosecution from commenting on a defendant’s silence at trial 

and prohibits the trial court from instructing the jury that such silence is evidence of guilt. Asking 

the defendant outside the presence of the jury whether he understands his rights and wishes to 

testify in no way implicates the holding in Griffin. Nor am I convinced that having a formal waiver 

requirement is likely to introduce error into the trial, at least no more so than the status quo. In 

fact, in cases such as this one, having an on-the-record waiver would remove the possibility of 

error that could be raised on appeal.

State and federal courts take varied approaches to whether the trial court must engage in 

an on-the-record colloquy with the defendant regarding the right to testify. Some courts impose

no duty on trial courts; some require trial courts to always conduct a colloquy; and others take a 

middle-ground approach by requiring an on-the-record waiver in certain circumstances. See Lynch 

v Commonwealth, 642 SW3d 647, 656 nn 19-20 (Ky, 2022) (cataloguing different approaches

taken by state and federal courts). For one recent example, the Connecticut Supreme Court held 

that while the state and federal constitutions “do[] not require that a defendant, himself, personally 

assert the waiver of his right to testify on the record,” trial courts must engage in a colloquy with 

“the defendant or, in certain circumstances, inquire of defense counsel directly to determine 

whether counsel properly advised the defendant regarding the waiver of his right to testify.” State 

v Morel-Vargas, 343 Conn 247, 250; 273 A3d 661 (2022).

Whether or not our Supreme Court chooses to reconsider this Court’s caselaw on the topic, 

taking an on-the-record waiver generally serves the best interests of all parties. Doing so ensures 

the defendant is informed of his rights, creates a clearer record, and facilitates appellate review. 

With these thoughts in mind, I concur.

/s/ Kristina Robinson Garrett