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March 26, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Nan R. Huhn, Trial Judge

Rogers, Chief Judge, Belson and Schwelb, Associate Judges. Chief Judge, Rogers, concurs.

The opinion of the court was delivered by: Belson

Appellant John E. Hunter appeals from the trial court's denial of his motion to vacate sentence and for new trial, D.C. Code § 23-110 (1989), primarily on the ground that he did not voluntarily waive his right to testify at trial. He also contends that he was denied effective assistance of counsel during a critical stage of the proceedings, the seven day period immediately following the jury's verdict during which, unless the period is extended, a motion for new trial must be filed. We affirm.

The trial court conducted a hearing on Hunter's motion in two sessions. At the first session, Hunter testified that he had wished to testify at trial, that he had told defense counsel repeatedly that he wished to testify, and that defense counsel prevented him from doing so. He further testified that he did not know that he could override defense counsel's decision not to call him to the stand. Letters written by Hunter to the trial Judge shortly after the jury rendered its verdict, however, belie his testimony. In the first letter, Hunter explained why he did not testify at his trial:

Now the reasons I didn't testify in my behalf is I was told bye (sic) Counsel, that D.A. would bring up my past record. And once the past was out, we stood no chance at all on winning the case. Now I question counsel judgment on that issue.

Letter from John E. Hunter to Judge Huhn (Jan. 11, 1985) (emphasis added). In the second letter, Hunter similarly stated, "now at this point I realize I have followed the wrong instruction not to testify." Letter from John E. Hunter to Judge Huhn (Jan. 12, 1985) (emphasis in original).

At the second session of the hearing, Wood, Hunter's trial counsel, testified that he and co-counsel had advised Hunter that it was not in his best interest to testify and that he was "positive that we were all in agreement that Mr. Hunter was not going to testify." Wood further testified that Hunter may have said something about testifying, but that "Hunter never told me I want to take the stand despite your advice, never." At the Conclusion of the second session of the hearing, the trial court denied Hunter's motion upon finding that Hunter had knowingly and voluntarily waived his right to testify. We perceive no basis for overturning that ruling.

The Supreme Court has recognized that the right to testify on one's own behalf at a criminal trial is a constitutionally protected right implicit in the Fifth Amendment guarantee against compelled testimony, the Sixth Amendment right to compulsory process, and the Fourteenth Amendment right to an opportunity to be heard in one's own defense. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); Boyd v. United States, 586 A.2d 670 (D.C.1991). A defendant may waive the right to testify, like other constitutional rights, as long as it is a knowing and voluntary waiver. United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987); cf. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) (discussing defendant's waiver of right to trial by jury, right to confront accusers, and right against self-incrimination); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (discussing defendant's waiver of right to counsel). Whether a defendant has validly waived his or her right to testify will depend on the particular circumstances of each case. See United States v. Teague, 908 F.2d 752, 761 (11th Cir. 1990); see also Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.) (when counsel's advice not to testify was reasonable and defendant personally chose to follow the advice, defendant's right to testify not violated), cert. denied, 111 S. Ct. 93, 112 L. Ed. 2d 65 (1990).

The evidence proffered at the hearing supports the trial court's findings that Hunter was aware of his right to testify and that he voluntarily relinquished that right. The trial court noted that this was not the first time that Hunter had been involved in the criminal Justice system and that through his prior experience with the criminal Justice system he was in fact aware of his right to take the stand to testify in his own defense. In addition, the trial court credited Wood who testified that he had informed Hunter of his right to testify, that he had advised Hunter not to testify, and that Hunter had never told him that he wanted to testify against that advice. The letters written by Hunter further support the trial court's determination.

Appellant contends that his conviction must be reversed because the trial Judge failed to engage in a colloquy with him when it became apparent that appellant was not going to testify on his own behalf. In our recent opinion in Boyd, supra, a division of this court discussed the desirability of such a colloquy between the trial Judge and the defendant. See Boyd, supra, slip op. at [11-23]. We made no holding with respect to whether a trial Judge is required to engage, sua sponte, in such a colloquy, stating "we need not now decide whether the trial Judge had a sua sponte duty to conduct a colloquy." Id. at 17. But our opinion went on to state:

"We take this occasion, however, to advise the trial court and the Bar, that while we do not today hold that the trial court has a sua sponte obligation to inquire of a non-testifying defendant before the defendant rests whether the defendant has waived the right to testify, it behooves the trial court to make such an on-the-record inquiry in order to avoid issues on appeal and collateral attacks.

Id. at 19-20 (footnotes omitted).

Although appellant in this case has raised the question of whether the trial Judge had a duty to conduct a colloquy with him with respect to whether appellant understood the ramifications of testifying or not, we need not decide whether to adopt the advisory statement in Boyd as a holding in this case. Appellant's trial predated the Boyd opinion, and the trial Judge was therefore unaware of our view that such a colloquy "would best serve all of the interests of all parties in the administration of Justice." Even if our expression in Boyd had been a holding, we conclude that it would not have had retroactive effect, and thus would not affect the outcome of this appeal. See People v. Curtis, 681 P.2d 504, 516-17 (Colo. 1984) (en banc) (applying prospectively the decision that such a colloquy should take place, citing Stovall v. Denno, 388 U.S. at 293, 297 (1967)); State v. Neuman, 371 S.E.2d 77 (W.Va. 1988) (specific requirements of procedures other than the pending appeal); compare Halliday v. U.S., 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969) (duty to establish on the record that the defendant effectively waived rights associated with guilty plea held not retroactive) with McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968) (duty to establish on the record effective waiver of right to counsel at sentencing hearing held retroactive). *fn1

Although a holding in Boyd that there is a requirement of a colloquy of the type described would not have been retroactive, we must nevertheless heed our Conclusion in Boyd that "the defendant's right to testify is one of those constitutional rights in which the Johnson v. Zerbst [304 U.S. 464] standard must apply in determining whether the defendant has waived that right." Id. at 16. Application of the Johnson v. Zerbst standard here gives us no pause because we are confident on this record that even in the absence of a colloquy with the Judge, Hunter was fully aware of his right to testify in his own behalf and, on advice of counsel, voluntarily decided to ...

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