No. 27634-8-IIThe Court of Appeals of Washington, Division Two.
Filed: June 21, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County, No. 011003526, Hon. Diane M. Woolard, July 3, 2001, Judgment or order under review.
Counsel for Appellant(s), Anthony J. Lowe, Attorney At Law, 1010 Esther St, Vancouver, WA 98660.
Counsel for Respondent(s), James D. Senescu, Clark Co Dep Pros Atty, 1200 Franklin St, P.O. Box 5000, Vancouver, WA 98666-5000.
HUNT, C.J.
Charles Bilyeu appeals his fourth degree assault conviction, claiming that he was denied his constitutional right to testify on his own behalf. Because the record shows that Bilyeu’s decision not to testify was a knowing, voluntary, and intelligent waiver of his constitutional right to testify, we affirm.
FACTS
On February 21, 2001, Bilyeu went to Debra Belgard’s home. She was his former girlfriend and the mother of their twin children. While they were talking, Bilyeu’s niece entered the residence and Belgard asked Bilyeu to get her out of her house because his niece had outstanding arrest warrants and she, Belgard, did not want to get into trouble. Angry, Bilyeu jumped up, grabbed Belgard by the throat, and threw her onto the couch.
When she tried to push him off her, Bilyeu kicked her in the arm, knocking Belgard onto a car seat. Bilyeu then yelled at his niece to take the baby daughter. Belgard screamed that he could not take her daughter and that he should take his niece and get out. Bilyeu turned, grabbed the dog and four puppies, went to the door, looked right at Belgard, and said, `I’m gonna come back and kill you and I’m gonna burn down your house.’ Report of Proceedings (RP) at 172. Bilyeu then left. Out of fear for herself and her four children, Belgard called 9-1-1.
During his arrest two days later, Bilyeu denied striking Belgard, explaining that Belgard was `psycho’ and that the officer should not believe her story. He explained that he went to Belgard’s house to pick up a pair of pants and when he went to leave, Belgard would not let him and was pushing and yelling at him.
The State charged Bilyeu by third amended information with felony harassment,[1] fourth degree assault,[2] and first degree trespass.[3] Clerk’s Papers (CP) at 29. Several times during trial, Bilyeu stated that he was going to testify. Bilyeu’s attorney advised Bilyeu not to testify and so informed the court, explaining his concern because of impeachment evidence the State could present and because of Bilyeu’s volatile nature. Although the court decided that the State could not impeach Bilyeu with his prior assault and theft convictions, the court engaged Bilyeu in an extensive dialog about the consequences that could follow from a decision to testify and the limits the court would put on the subject matter to which he could testify.
But Bilyeu continued to insist that he intended to testify because he wanted the jury to know that Belgard heard voices. At one point, he stated, `Well, I’m gonna be on that witness stand first before jury instructions. Oh, yeah. Oh, yeah. That jury — I want that jury to know . . . that that woman hears voices.’ RP at 373. When the court explained that Bilyeu could not testify that Belgard hears voices, Bilyeu retorted, `Okay, well, I don’t care what the Court says, if I want that testimony in front of that jury, I think it’s up to me . . . to put it there.’ RP at 375. Before the defense rested, however, Bilyeu explained to the court that he was not going to testify.
The court then questioned Bilyeu about his decision and asked Bilyeu’s counsel if she believed that it was a knowing, voluntary, and intelligent waiver of his right to testify. Counsel said that it was, the court then found a valid waiver, and the defense rested. The jury found Bilyeu guilty of only the fourth degree assault charge.
ANALYSIS
Bilyeu claims on appeal that his right to testify under the federal and state constitutions was abrogated because he was not informed that the decision to testify or not to testify was his alone and not the court’s or his attorney’s decision. He claims that once a trial court becomes aware of a defendant’s desire to testify, it should inform the defendant that it is his decision alone. And he argues that if this is not required under the federal constitution, it should be required under the state constitution because it affords greater protection than its federal counterpart.[4] Specifically, he argues:
In determining whether the waiver of the right to testify is made knowingly, voluntarily and intelligently, the court should be required to advise the defendant that he has a right to testify, also a right to remain silent, and should determine if his waiver was made following the advice of counsel and that the defendant is aware that the right cannot be abrogated by defense counsel or the court.
Appellant’s Brief at 15.
Bilyeu then argues that his conviction should be reversed and remanded for a new trial because `it cannot be certain from the record made that the defendant knew that his counsel or the court could not make the decision against his wishes.’ Appellant’s Brief at 15-16.
The United States Supreme Court has recognized that a criminal defendant has a constitutional right to testify on his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37
(1987). On the federal level, the defendant’s right to testify is implicitly grounded in the Fifth, Sixth, and Fourteenth Amendments. Id. at 51-52. In Washington, a criminal defendant’s right to testify is explicitly protected under our state constitution. This right is fundamental, and cannot be abrogated by defense counsel or by the court. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Only the defendant has the authority to decide whether or not to testify. Id. The waiver of the right to testify must be made knowingly, voluntarily, and intelligently, but the trial court need not obtain an on the record waiver by the defendant. Id. at 558-59.
State v. Robinson, 138 Wn.2d 753, 758-59, 982 P.2d 590 (1999).
In order to prevail on such a claim, a defendant must first show that his attorney `actually prevented’ him from testifying. Robinson, 138 Wn.2d at 759 (quoting In re Personal Restraint of Lord, 123 Wn.2d 296, 868 P.2d 835 (1994) (quoting State v. King, 24 Wn. App. 495, 601 P.2d 982
(1979))). To do so, `the defendant must present substantial, factual evidence in order to merit an evidentiary hearing or other action.’ Robinson, 138 Wn.2d at 760 (quoting State v. Thomas, 128 Wn.2d 553, 561, 910 P.2d 475 (1996). Mere assertions without factual support are insufficient. Robinson, 138 Wn.2d at 760.
More specifically, `a defendant’s right to testify is violated if `the final decision that he would not testify was made against his will.” Robinson, 138 Wn.2d at 763 (quoting United States v. Teague, 908 F.2d 752, 759 (11th Cir. 1990), vacated by 932 F.2d 899 (11th Cir. 1991), rev’d on reh’g on other grounds by en banc, 953 F.2d 1525 (11th Cir. 1992)).
Finally, We must distinguish between cases in which the attorney actually prevents the defendant from taking the stand, and cases in which counsel `merely advise[s] [the] defendant against testifying as a matter of trial tactics.’ King, 24 Wn. App. at 499. Furthermore, while the decision to testify should ultimately be made by the client, it is entirely appropriate for the attorney to advise and inform the client in making the decision to take the stand. `Unaccompanied by coercion, legal advice concerning [the] exercise of the right to testify infringes no right, but simply discharges defense counsel’s ethical responsibility to the accused.’ Lema [v. United States,] 987 F.2d [48,] 52 [(1st Cir. 1993)] (citations omitted).
Robinson, 138 Wn.2d at 763-64. Even upon showing that his attorney actually prevented him from testifying, a defendant is not entitled to a new trial unless he additionally demonstrates that his testimony would have a reasonable probability of affecting a different trial outcome. Robinson, 138 Wn.2d at 769.
Here, the record shows unequivocally that Bilyeu waived his right to testify. Nothing in the record suggests otherwise or that he should have been entitled to an evidentiary hearing. While generally the trial court should refrain from engaging in colloquy with the defendant about his decision to testify or not to testify, the record here demonstrates that it was wholly appropriate.[5] The defendant insisted multiple times that he was going to testify, that he would do so against his attorney’s advice, and that he was going to testify about matters the trial court had ruled inadmissible.
It is apparent from the following that the trial court was not trying to influence the defendant’s decision or to interfere in the attorney-client relationship; it was simply creating a record that the defendant had made a knowing and voluntary decision after consulting with his attorney:
MS. GAFFNEY: Okay. My client is telling me now that you are ready to rest, you are in agreement that I not call Debra Belgard and you are in agreement that you not take the stand; is that correct?
THE DEFENDANT: (Indicating in the affirmative.)
MS. GAFFNEY: I need you to answer out loud on the record.
THE DEFENDANT: Yes.
THE COURT: Is it? And you have changed your mind from a little while ago, and why have you changed your mind, Mr. Bilyeu?
THE DEFENDANT: I think the jury’s already heard enough.
THE COURT: I’m sorry, I can’t hear you. . . .
THE DEFENDANT: I think the jury’s already heard enough about voices. I don’t think we’ll have a problem getting a not guilty verdict from them.
THE COURT: Okay. And so you’ve thought about the evidence that’s been presented, and you’ve thought about the advice you’re getting from your attorney?
THE DEFENDANT: Yeah.
THE COURT: Okay. And you know you have the right to testify in this case.
THE DEFENDANT: Yes, ma’am.
THE COURT: And you have the right to have your attorney ask you questions and get certain information out of you. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. And so you’ve decided that you’re going to remain silent throughout the rest of the case, you’re not going to testify; is that correct?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right.
THE DEFENDANT: I’d like these jurors to not hold it against me because I’m not testifying, though.
THE COURT: Well, we’ve got another jury instruction that we need to put in if you’re not going to testify that says just that, and so we will find one of those. . . . .
THE COURT: . . . So now what we need to do is bring in the jury and I’ll read them the instructions and we go directly to closing; is that correct?
MS. GAFFNEY: Yes, Your Honor.
THE COURT: All right. And, Mr. Bilyeu, is that your understanding?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. And you’re in agreement with that?
THE DEFENDANT: Yes, ma’am.
. . . .
THE COURT: All right. . . . Mr. Bilyeu and I have discussed that he understands his right not to testify and that he’s listened to his lawyer’s advice and has made an informed decision about not wanting to testify.
And, Ms. Gaffney, have you talked to him about that, do you think that Mr. Bilyeu makes that knowingly, voluntarily and intelligently?
MS. GAFFNEY: Yes, I do, Your Honor.
THE COURT: All right. Mr. Bilyeu, are you indicating to me that you understand your right to testify and you’re deciding not to knowingly, voluntarily and intelligently? THE DEFENDANT: Yes, ma’am.
RP at 387-90.
The trial court did more than the law required and everything that Bilyeu demands on appeal. The testimony set out above, coupled with Bilyeu’s early adamant assertion that he was going to testify, aptly demonstrates that Bilyeu knew it was his decision and his decision alone whether to testify. Nothing suggests that counsel prevented him from testifying; it merely shows that counsel advised him, with good reason, not to testify. His was a knowing, voluntary, and intelligent decision to waive his right to testify on his own behalf.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN and QUINN-BRINTNALL, JJ., concur.