State v. Robinson

¶1— (concurring in part, dissenting in part)I agree with the majority that we should reverse the Court of Appeals and send this case back to the trial court for an evidentiary hearing on the issue of whether Robinson’s trial counsel interfered with his constitutional right to testify. I agree, also, that at that hearing the burden will be on Robinson to prove, by a preponderance of evidence, that his attorney actually prevented him from testifying. If he meets that burden the trial court must conclude that his trial counsel was ineffective.

¶2I disagree with the majority, though, in its conclusion that in the event Robinson meets his burden of showing that his trial counsel prevented him from testifying, he *771must assume an additional burden to establish that he was prejudiced by his counsel’s ineffectiveness. In my view, when an attorney prevents a client from exercising a right so fundamental as the right to testify at trial, the defendant should not have to establish that the testimony that would have been presented would have made a difference in the outcome of the trial. Indeed, we have concluded in State v. Hill, 83 Wn.2d 558, 520 P.2d 618 (1974), that deprivation of a defendant’s right to testify is per se prejudicial. The Court of Appeals has done likewise in In re Detention of Haga, 87 Wn. App. 937, 943 P.2d 395 (1997), review denied, 134 Wn.2d 1015, 958 P.2d 316 (1998).

¶3The' majority attempts to distinguish the aforementioned cases by pointing out that the abridgment of the right to testify there was by the trial court and not counsel. While the majority is correct in observing that in Hillwe held that the trial court’s evidentiary ruling interfered with the defendant’s right to testify, it was clear that we held that the defendant does not have to show that he or she suffered prejudice in order to obtain a new trial. We said

[h]is testimony may or may not have influenced the jury in arriving at a verdict. In any event, he was entitled by constitutional and statutory provision to give his version of the events if he wished. The trial court’s unfortunate ruling, which would have saddled the defendant’s testimony with the taint of the two reversed convictions, prejudicially deprived him of a free and voluntary choice in the matter and literally compelled him to remain silent. He, therefore, should be entitled to a new trial.

¶4Hill, 83 Wn.2d at 565. I fail to understand why counsel’s interference with the same fundamental right should be held to a different standard. Contrary to the majority’s efforts to confine Hillto its facts, we stated broadly there that the constitutional right to testify “should be unfettered and unhindered by any form of compulsion.” Hill, 83 Wn.2d at 564. We did not add, as the majority would have us do, the words “by a trial judge” to the end of that sentence.

¶5*772The Haga case out of Division Two of the Court of Appeals, contrary to the majority’s assertion that it is “arguably distinguishable,” Majority op. at 768, is directly on point.4 There the defendant’s counsel advised the trial court that he had doubts about his client’s ability to testify truthfully. The attorney also expressed doubts about his client’s competency. Although the trial court indicated there that it would “’go along’ ” with trial counsel’s decision not to call his client as a witness, the moving force behind the deprivation of the right to testify was clearly trial counsel. Haga, 87 Wn. App. at 940. After reviewing this set of facts, the Court of Appeals concluded that a defendant cannot be deprived of his right to testify and that it is irrelevant that counsel refused to call him as a witness. In addressing the issue of prejudice, the Court of Appeals concluded that the right to testify is not generally susceptible to a harmless error analysis. I entirely agree.

¶6The majority essentially concludes that deprivation of the right to testify is subject to a harmless error analysis. This conclusion flies in the face of the right of the defendant to testify in criminal prosecutions, a right guaranteed by our state constitution, article I, section 22, and by statute, RCW 10.52.040. Furthermore, the requirement that the defendant establish prejudice by an offer of proof as to his or her testimony places the defendant at a distinct disadvantage in having to disclose the substance of the testimony before actually testifying.

¶7The majority expresses a concern that a presumption of prejudice in cases like this will “have the practical effect of granting new trials to all defendants who were able to prove that their attorneys prevented them from testifying.” Majority op. at 769. What, I ask, is wrong with that? It would seem to me to be a fundamental proposition that persons should not be convicted at a criminal trial at which they were prevented from testifying. The majority’s concern *773that floodgates will be opened to masses of these cases is, in my view, not warranted. Considering the high quality of the bar of this state, I am confident that it will be the rare case where an attorney acknowledges, as counsel did here, that “I refused to accede to my client’s request and did not ask the court for permission to reopen the case and allow the defendant to testify.” Supplemental Clerk’s Papers at 81.

¶8In short, I am satisfied that if Robinson establishes that his trial counsel interfered with his right to testify, it logically follows that he suffered prejudice as a result of the ineffective assistance he received from the attorney. A new trial should, therefore, be the result.

¶9Johnson, Madsen, and Sanders, JJ., concur with Alexander, J.