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05/10/91 TONY KELLY A/K/A HOMER PALMER v. UNITED

May 10, 1991

TONY KELLY A/K/A HOMER PALMER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge

Rogers, Chief Judge. Ferren, Associate Judge. Belson, Associate Judge, concurs in the result.

The opinion of the court was delivered by: Rogers

Appellant Tony Kelly appeals from his convictions *fn1 on the principal ground that the trial Judge abused his discretion in denying appellant's motion for a new trial because the court denied him the right to testify at trial and his counsel was ineffective because counsel failed to protect appellant's right to testify absent a knowing and intelligent waiver. Finding these contentions unpersuasive, but observing that this appeal further demonstrates the advisability of a trial colloquy to determine whether the defendant wishes to testify, see Boyd v. United States, 586 A.2d 670 (1991), we affirm.

I

On July 30, 1986, Ms. Zimmerman and her daughter Simone, who was eight years old at the time of trial, were asleep in their apartment when appellant, Ms. Zimmerman's former boyfriend, began banging on the door, demanding to be let in. When Ms. Zimmerman refused to let him in, appellant began to curse and hit the windows with a hatchet, breaking several of them. The mother and child ran for the back door, but appellant ran to the back door as well, and when Ms. Zimmerman inserted her key into the back door to unlock it, appellant smashed a glass pane in the door, spraying bits of glass onto the mother and child. As the mother and child ran towards the front door, appellant reached through the broken glass, unlocked the door, and pursued them through the apartment, holding the hatchet in his hand.

Neighbors were awakened by the sounds of breaking glass and the mother's cries for help, and called the police. As the police approached, appellant fled, and a neighbor heard him say words to the effect, "I should kill you bitch."

Appellant did not testify at trial. Five days after the jury had returned its guilty verdicts, appellant wrote the first of two motions for a new trial; the second followed two days later. In neither did he allege that he had been denied the right to testify at trial. Three months later, appellant filed a motion pursuant to D.C. Code § 23-110 (1989), but still did not claim that he had been denied his right to testify. Because of appellant's complaints about his trial counsel, the Judge appointed new counsel for the hearing on appellant's new trial motion.

At the new trial hearing on July 8, 1987, appellant testified that he had wanted to testify in his own defense at trial. He stated that after the defense had rested, when he realized that no witnesses had been called on his behalf, he had asked his trial counsel whether he was going to testify, and his counsel had told him that he was not. Appellant claimed that he had objected, but thought that he had to obey his counsel on such matters. Appellant's trial counsel, a member of the District of Columbia Public Defender Service, testified that prior to trial he had discussed with appellant whether he should testify at his trial, and had thought that appellant had agreed not to testify based on counsel's advice that appellant would be impeached with his prior convictions and be questioned about a damaging letter in which he had demanded that Ms. Zimmerman drop the charges against him and threatened her with violence if she did not.

The trial Judge denied the motion for a new trial on the alternative grounds that trial counsel could waive appellant's right to testify and had done so, and even if appellant alone could waive his right to testify, he had done so. The Judge observed that there had been pretrial Discussion of the subject between appellant and his trial counsel, appellant was familiar with the criminal Justice system, and he had previously demonstrated both knowledge of his rights and an ability to assert them. The Judge concluded that appellant understood prior to trial that a Conclusion had been reached that he was not going to testify, and that Conclusion was reinforced at the time the defense rested with appellant's assent. In addition, the Judge observed that appellant "is not timid about his rights. He's admirably forthright in asserting them, and I believe that if he felt that this decision had been made without his desires and without his cooperation, that he would have spoken up then and there." In particular, the Judge noted that appellant had vigorously expressed his dissatisfaction with his various trial counsels' conduct on prior occasions, even when doing so involved interrupting the proceedings and speaking directly to the Judge. Because, in contrast to his prior behavior, appellant had raised no complaint regarding his right to testify at trial until after his conviction, the Judge found that appellant had waived his right to testify and only changed his mind after the jury convicted him.

II

Appellant, relying on Boyd, supra, contends that the trial Judge abused his discretion in denying a new trial since trial counsel was ineffective in failing to protect appellant's right to testify at trial and the trial Judge denied appellant's right to testify absent a knowing and intelligent waiver. He maintains that defense counsel rested the defense case without conferring with appellant and failed at any time to confer with appellant about his testifying at trial. Further, he contends that the trial Judge was aware of appellant's dissatisfaction with his defense counsel and nonetheless failed to protect appellant's constitutional rights by inquiring whether he had knowingly waived his right to testify.

Recently, the court held in Boyd, supra, that "the defendant's right to testify in a criminal trial is a fundamental and personal right which can only be waived by the defendant." Byrd, supra, 586 A.2d at 674. In discussing how trial Judges could safeguard the right to testify, the court stated:

We take this occasion . . . 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 attack.

Id. at 678 (footnotes omitted). Appellant's trial occurred prior to our decision in Boyd, and in Hunter v. United States, No. 89-1229 (D.C. Mar. 26, 1991), the court concluded that even if our expression in Boyd regarding the desirability of a colloquy had been a holding, it would not be applied retroactively. Hunter, supra, slip op. at 5. Our Discussion in Boyd regarding the nature of the defendant's right to testify and the merits of a trial colloquy was, of ...


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