Appeal from the Superior Court of the District of Columbia; Hon. Luke C. Moore, Trial Judge
Rogers, Chief Judge. Pryor, Senior Judge. Associate Judge Schwelb, Dissents.
The opinion of the court was delivered by: Rogers
Appellant Cynthia A. Boyd appeals from her conviction by a jury of possession of heroin, D.C. Code § 33-541 (1989 Repl.), on the principal ground that she was denied her constitutional right to testify. We hold that the right to testify is a fundamental constitutional right that can only be waived by the defendant, and that the trial Judge erred in failing to hold a hearing to determine whether or not Boyd had waived her right to testify when she asserted that she had wanted to testify. Accordingly, the case is remanded to the trial court.
On the evening of her arrest, Boyd was spotted by Sergeant McNeely in the 600 block of Division Avenue in Washington, D.C., a high narcotics area. McNeely observed Boyd as she was approached by a man, as she spoke with him briefly, and as she and the man walked to the 5100 block of Fitch Avenue, where they entered a wooded area. *fn1
Boyd emerged from the woods approximately one minute later and returned to the 600 block of Division Avenue. McNeely approached her and asked for identification. As McNeely examined Boyd's driver's permit, Boyd reached into her handbag and removed two small plastic packets containing a white powder substance, and attempted to put them down the back of her blouse. Recognizing these packets to be similar to packets of heroin, McNeely grabbed Boyd's forearm in an attempt to recover the packets. However, Boyd flicked her wrist, tossing the packets over the side of the footbridge on which they stood. A struggle ensued with Boyd finally being subdued and arrested by McNeely and two other officers who had arrived to assist in the arrest.
McNeely subsequently searched the area underneath the footbridge. Although the small creek was filled with debris, such as bottle caps, newspapers and used syringes, he recovered two packets from the creek bed under the bridge which he was certain were the packets tossed by Boyd. McNeely explained that he could be certain of the packets' identity for several reasons. First, unlike the other refuse in the area, the recovered packets were clean and did not have a film of dirt or residue indicating they had been exposed to the elements. Second, the heroin in the recovered packets had not been diluted by water. *fn2 Third, the packets were the same size, shape and color as those tossed away by Boyd. Finally, nothing else in the creek area resembled the packets Boyd threw over the footbridge.
Boyd did not present a defense. After the jury returned a guilty verdict and was polled, Boyd made an outburst complaining that she had wanted to testify on her own behalf. *fn3 The Judge directed the Marshal to escort Boyd out. Shortly thereafter, defense counsel approached the bench and told the trial Judge that Boyd had wanted to testify, but that counsel had advised her it would not "be in her best interest." Defense counsel explained that he advised Boyd that she should not testify because she would have been impeached with prior convictions for possession of heroin and possession with intent to distribute. The trial Judge concluded that this was a reasonable tactical decision of defense counsel.
At the sentencing hearing, Boyd renewed her complaint that she had not been allowed to testify at trial. She told the Judge: "I wanted to go up there and talk for myself. [My lawyer] had me thinking I was going to testify for myself and then all of a sudden he cut it off, you know, and I don't think that was right." The trial Judge rejected Boyd's arguments without seeking further clarification from counsel, and sentenced Boyd to one year in jail. *fn4
Appellant Boyd contends that she was denied her constitutional right to testify, a fundamental right that she did not waive, having told her attorney that she wanted to testify. She maintains that this is clear from the record and that, therefore, her conviction must be reversed.
The United States Supreme Court has made clear that a criminal defendant enjoys a constitutional right to testify on her own behalf: "At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (holding unconstitutional a state evidentiary rule forbidding defendants from offering hypnotically refreshed testimony). The right to testify has several constitutional sources. It is "one of the rights that 'are essential to due process of law in a fair adversary process.'" Id. at 51 (citation omitted). The right is therefore protected by the due process clauses of the Fifth and Fourteenth Amendments, which guarantee the defendant "an opportunity to be heard in his defense." Id. The right to testify can also be "found in the Compulsory Process Clause of the Sixth Amendment. . . . Logically included in the accused's right to call witnesses whose testimony is 'material and favorable to his defense' is a right to testify himself, should he decide it is in his favor to do so." Id. at 52 (citation omitted). Finally, the right to testify is a "necessary corollary to the Fifth Amendment's guarantee against compelled testimony," which ultimately protects the defendant's "choice of whether to testify in one's own defense." Id. at 52-53 (citation omitted).
The government, conceding that the Supreme Court has resolved any question of the constitutional underpinnings of the defendant's right to testify, contends that the right is not absolute, however, and that defense counsel should be permitted to waive the client's right to testify. *fn5 In the government's view, the best approach is "to permit defense counsel, consistent with his or her obligation diligently and zealously to defend the client and to carry out the client's desires regarding the goals of litigation, to make the ultimate decision because defense counsel is in the best position to recognize and confront the tactical ramifications involved." *fn6 The government acknowledges, however, that there is emerging case law to the contrary, requiring attorneys to abide by the defendant's ultimate decision whether to testify. *fn7 Further, the government argues that we need not decide whether an attorney may waive the client's right to testify because the record reveals that Boyd waived her right by not "affirmatively attempting to assert her right to testify" until after the jury had returned its verdict. We must therefore consider in what circumstances the right to testify may be waived, an issue of first impression for this court. See Witherspoon v. United States, 557 A.2d 587, 596-97 (D.C. 1989) (Ferren, J., Concurring).
It is, of course, beyond dispute that counsel for the accused has ultimate responsibility for many tactical trial decisions, such as which witnesses to call, which arguments to raise on appeal, Jones v. Barnes, supra, 463 U.S. 745, 103 S. Ct. 3308, 77 LEd. 2d 987 and whether and in what manner to cross-examine the government's witnesses. See Brookhart v. Janis, 384 U.S. 1, 8-9, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) (Harlan, J., Concurring) ("The decision, for example, whether or not to cross-examine a specific witness is, I think, very clearly one for counsel alone"). Counsel even controls tactical decisions over some constitutional rights. See Estelle v. Williams, 425 U.S. 501, 508 n.3, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) (concerning a defendant's constitutional right to decide whether to wear prison garb at trial). But there are certain fundamental and personal constitutional rights which may only be waived by the defendant. See Johnson v. United States, 513 A.2d 798, 802 (D.C. 1986). Thus, the defendant must decide whether to plead guilty, Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1968); Carmichael v. United States, 479 A.2d 325, 327 (D.C. 1984), whether to ask for a jury trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1942); Jackson v. United States, 262 A.2d 106, 109 (D.C. 1970), whether to appeal, Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Johnson, supra, 513 A.2d at 802, and whether to forego the assistance of counsel, Faretta v. California, supra, 422 U.S. 806; Fowler v. United States, 411 A.2d 618, 623 (D.C. 1980). The defendant's decision over each of these fundamental rights will prevail, even if defense counsel disagrees.
The decision whether to testify can be the single most important factor in a criminal case. As the Supreme Court stated in Rock v. Arkansas, supra, "In fact, the most important witness for the defense in many criminal cases is the defendant himself." 483 U.S. at 52. In another context, the Court acknowledged specifically that "the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961) (plurality opinion) (right to allocution). The decision to testify thus is "crucial in governing the defendant's fate." People v. Curtis, 681 P.2d 504, 513 (Colo. 1984) (en banc); see AMSTERDAM, TRIAL MANUAL FOR THE DEFENSE OF CRIMINAL CASES § 390 (3d ed. 1974). Although a defendant who chooses to testify may actually decrease his or her chance of acquittal, nonetheless, "the wisdom or unwisdom of the defendant's choice does not diminish his right to make it." Curtis, supra, 681 P.2d at 513 (quoting Wright v. Estelle, supra, 572 F.2d at 1079 (Godbold, J., Dissenting)). The defendant's
desire to tell "his side" in a public forum may be of overriding importance to him. Indeed, in some circumstances the defendant, without regard to the risks, may wish to speak from the stand, over the head of Judge and jury, to a ...