        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                         JUNE, 1997 SESSION
                                                   December 9, 1997

                                                   Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
NAPOLEON MOMON,             )
                            )    No. 03C01-9605-CR-00187
           Appellant,       )
                            )
vs.                         )    Hamilton County
                            )
STATE OF TENNESSEE,         )    Honorable Stephen M. Bevil, Judge
                            )
           Appellee.        )    (Post-Conviction)
                            )



FOR THE APPELLANT:               FOR THE APPELLEE:
On Appeal:                       JOHN KNOX WALKUP
STEPHEN M. GOLDSTEIN             Attorney General & Reporter
314 Vine St.
Chattanooga, TN 37403            JANIS L. TURNER
                                 Counsel for the State
At the Hearing:                  450 James Robertson Parkway
WILLIAM J. MARETT, JR.           Nashville, TN 37243-0493
Bryan & Marett
211 Third Ave. North             WILLIAM H. COX
Nashville, TN 37201              District Attorney General

                                 THOMAS J. EVANS
                                 Assistant District Attorney General
                                 600 Market St., Ste. 310
                                 Chattanooga, TN



OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                     OPINION

              The petitioner, Napoleon Momon, appeals pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure from the Hamilton County Criminal

Court’s denial of post-conviction relief. The petitioner was convicted in 1991 of

second degree murder in the shooting death of his wife, Jacqueline Daniel

Momon, and received a twenty-five-year sentence.1 His conviction was affirmed

on direct appeal to this Court. State v. Napoleon Momon, No. 03C01-9205-CR-

00174 (Tenn. Crim. App., Knoxville, Nov. 20, 1992).



              On August 17, 1995, the petitioner instituted this post-conviction

proceeding in which he alleged that he was denied effective assistance of

counsel in violation of the Sixth Amendment to the United States Constitution

and Article 1, Section 9 of the Tennessee Constitution.2 After an evidentiary

hearing on the merits, the trial court found that (1) defense counsel’s decision to

rest without calling the defendant to the stand was the result of trial strategy

based on the results of the first trial; (2) based on the defendant’s claim of


       1
              The trial on October 3 - 4, 1991 was the second trial. On June 5,
1991, the jury acquitted the petitioner of first degree murder but could not reach
a decision on the lesser included offense of murder in the second degree.
       2
               Specifically, the petition alleges that Momon’s attorney failed to
raise a defense, failed to consult with his client, failed to investigate the
circumstances surrounding the death, failed to impeach the witnesses, failed to
conduct an adequate voir dire, and failed to obtain the victim’s medical and
psychological records. At the hearing, testimony about counsel’s failure to raise
a defense centered on the right of the defendant to testify on his own behalf, and
the trial judge made findings on that issue. In this instance, the allegations
raised in the petition, particularly the failures to raise a defense and to consult
with the defendant prior to the second trial, are sufficient to raise the issue of
whether an attorney’s unilateral decision to put on no proof violates a
defendant’s constitutional right to be heard on his own behalf. We are mindful,
however, that post-conviction petitions are heard upon the issues raised by the
pleadings and that the failure to allege a specific ground for ineffective
assistance of counsel may result in waiver of the issue on appeal. Steven
Mason v. State, No. 01CO1-9610-CC-00428, slip op. at 4(Tenn. Crim. App.,
Nashville, Sept. 30, 1997). See also State v. Smith, 814 S.W.2d 45, 49
(Tenn.1990).

                                          2
accident, his attorney had no reason to pursue a self-defense theory; (3) any

evidence relating to self-defense, including the victim’s counseling records,

would have been irrelevant; (4) defense counsel had numerous meetings with

the defendant and his son and was sufficiently familiar with the case; and (5) the

attorney conducted an appropriate voir dire and the defendant never indicated to

the attorney that he wanted any particular juror removed. Based on these

findings, the trial judge held that the petitioner was not denied the effective

assistance of counsel and dismissed the petition.



              In this appeal, the petitioner contends that his counsel was

ineffective because he

              1.     refused to allow him to testify at the
                     second trial;

              2.     failed to raise the defense of self-
                     defense and failed to obtain the victim’s
                     counseling records that would have
                     been relevant to that defense;

              3.     failed to investigate and interview the
                     state’s witnesses.

              4.     failed to confer with the petitioner prior
                     to his second trial.



              We have carefully reviewed the record and the applicable law, and,

for the reasons discussed below, we affirm the judgment of the trial court.



                                Standard of Review



              The Sixth Amendment of the United States Constitution and Article

I, § 9 of the Tennessee Constitution both require that a defendant in a criminal

case receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930


                                          3
(Tenn. 1975). When a defendant claims ineffective assistance of counsel, the

standard applied by the courts of Tennessee is "whether the advice given or the

service rendered by the attorney is within the range of competence demanded by

attorneys in criminal cases." Summerlin v. State, 607 S.W.2d 495, 496 (Tenn.

Crim. App. 1980).



              In Strickland v. Washington, the United States Supreme Court

defined the Sixth Amendment right to effective assistance of counsel. 466 U.S.

668, 104 S.Ct. 2052 (1984). First, the appellant must show that counsel's

performance fell below an objective standard of reasonableness under prevailing

professional norms and must demonstrate that counsel made errors so serious

that he was not functioning as "counsel" guaranteed by the Constitution.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the petitioner must

show that counsel's performance prejudiced him and that those errors were so

serious as to deprive the defendant of a fair trial and to call into question the

reliability of the outcome. Id.



              A reviewing court must indulge a strong presumption that counsel's

conduct falls within the range of reasonable professional assistance and must

evaluate counsel's performance from counsel's perspective at the time of the

alleged error and in light of the totality of the evidence. Strickland, 466 U.S. at

695. Petitioner must demonstrate that there is a reasonable probability that but

for counsel's deficient performance, the result of the proceeding would have

been different. Id.



              The findings of fact made by the trial court at the conclusion of a

hearing on a petition for post-conviction relief has the weight of a jury verdict.


                                          4
Clark v. State, 800 S.W.2d 500, 506 (Tenn. Crim. App. 1990). As a result, this

court is bound by those findings unless the evidence contained in the record

preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 746

(Tenn.1993).     In our review we are bound by well-established standards. First,

the standard established in Baxter v. Rose does not require perfect

representation. State v. Vermilye, 754 S.W.2d 82, 85 (Tenn. Crim. App. 1987).

Second, an appellate court does not “second guess” trial counsel’s tactical and

strategic choices unless those choices are made without adequate knowledge of

the facts or the applicable law. Id. Third, the fact that a different procedure or

strategy might have produced a different result does not necessarily deprive an

accused of the effective assistance of counsel. Id. The burden is on the

petitioner to demonstrate that the evidence preponderates against the findings of

the trial court. State v. Cook, 749 S.W.2d 42, 45 (Tenn. Crim. App. 1987).



               We discuss and decide the issues petitioner has raised with these

standards in mind.



I. Denial of the Right to Testify

               The grand jury indicted the petitioner for murder in the first degree

in the death of his wife, Jacqueline Momon.3 The petitioner, who is a paraplegic

confined to a wheel chair, testified in his own defense during the first trial.4 The

jury returned a verdict of not guilty of premeditated and deliberate murder but

was unable to reach a verdict on the lesser included offense of second degree




       3
             Although the petitioner had known Jacqueline Momon for about
fourteen years, they had been married only three months at the time of her
death.
       4
               The petitioner is also blind in one eye, deaf, and diabetic.

                                          5
murder.5 Four months later, at the second trial, the state called the same

witnesses and presented virtually the same evidence as in the first trial. The

defense rested without putting on any proof, and the jury found Momon guilty of

second degree murder.



              Trial counsel’s testimony at the post-conviction hearing

corroborates the petitioner’s contention that the attorney made the decision not

to call the petitioner as a witness in the second trial. The attorney acknowledged

that, on the second day of trial, he made the decision without consulting the

petitioner and that he told Momon and Momon’s son of the decision just before

re-entering the courtroom. The attorney based his decision on the comments of

two jurors in the previous trial who told him that they had not believed Momon

when he testified that he shot his wife accidentally. The petitioner contends that

the decision to testify or not testify rests with the accused, and that trial counsel

was ineffective in that counsel denied the petitioner his fundamental

constitutional right to testify on his own behalf. Moreover, petitioner argues, if he

had testified at the second trial, there is a reasonable probability that the

outcome would have been different.6


       5
              The record of the first trial is not part of the record on appeal.
Martin Biesack, who served as defense counsel in both trials and on direct
appeal, said that he had the transcript at one time but that he was unable to
locate it. He opined that he may have sent it to Nashville to the Board of
Professional Responsibility in response to the petitioner’s complaint.
       6
             We are unable to summarize the state’s position because the state
has not responded specifically to any of the petitioner’s allegations. After reciting
the appropriate standard as found in Strickland and Baxter v. Rose, the state’s
brief concludes with the following paragraph:

                      In the case at hand, the trial court found that
              the petitioner was not deprived of effective assistance
              of counsel. The Court found that two of the four
              instances of ineffective assistance as charged by the
              petitioner to be without basis in fact. The Court found
              further that the other complaints amounted to trial

                                          6
              For the reasons discussed below, we find that defense counsel

failed to advise and consult with his client on the matter of whether or not he

should take the stand in his own behalf at the second trial and that,

consequently, the petitioner was deprived of his constitutional right to be heard at

trial. See U.S. Const. amend. V, VI, XIV; Tenn. Const. art. 1, sec. 9; Rock v.

Arkansas, 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2708-09 (1987); State v.

Burkhart, 541 S.W.2d 365, 369 (Tenn.1976); Campbell v. State, 469 S.W.2d

506, 509 (Tenn. Crim. App. 1971); State v, Frazier, 683 S.W.2d 346, 353 (Tenn.

Crim. App. 1984). However, the petitioner has not carried the burden of

demonstrating that, if his attorney had properly advised him and consulted his

wishes on the matter, he would have testified and that there is a reasonable

probability that, because of his testimony, the outcome of the trial would have

been different.



A. A Constitutional Right

              The United States Supreme Court has made it clear that a criminal

defendant has a constitutional right to testify at trial. United State v. Dunnigan,

507 U.S. 87, 96, 113 S.Ct. 1111, 1117 (1993); Rock v. Arkansas, 483 U.S. 44,

49-52, 107 S.Ct. 2704, 2708-2709 (1987); Jones v. Barnes, 463 U.S. 745, 751,

103 S.Ct. 3308, 3312 (1983); Faretta v. California, 422 U.S. 806, 829-834, 95

S.Ct. 2525, 2538-41 (1975); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct.

643, 645 (1971). In Rock v. Arkansas, the Supreme Court stated that, although,

under the common law, a criminal defendant was disqualified from testifying,




              strategy, and that the petitioner has failed to carry the
              burden to show that this was ineffective assistance or
              that the outcome would have been any different.

                                          7
“[a]t 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.” 483 U.S. at 49, 107 S.Ct. at 2708.



              A defendant’s right to testify at a criminal trial originates in three

provisions of the United States Constitution.7 The Fourteenth Amendment’s

guarantee of due process of law includes the right to be heard and to offer

testimony. Rock v. Arkansas, 483 U.S. at 51, 107 S.Ct. at 2709; Faretta v.

California, 422 U.S. at 819 n.15, 95 S.Ct. at 2533 n. 15. The Sixth Amendment,

which grants an accused the right to call witnesses, logically includes the right to

testify at trial if the accused decides it would be advantageous to place his or her

testimony before the jury. Rock v. Arkansas, 483 U.S. at 52, 107 S.Ct. at 2709.

Moreover, the Court recognized that, under the Sixth Amendment, the right to

present the accused’s version of events in the accused’s own words is even

more fundamental than the right to self-representation, a right “necessarily

implied by the structure of the amendment.” Id. (quoting Faretta v. California, 422

U.S. at 819, 95 S.Ct. at 2533). The right to testify is also “a necessary corollary”

to the Fifth Amendment’s guarantee against compelled self-incrimination. Id.




       7
               For federal cases holding that the right to testify is a fundamental
constitutional right see, e.g., United States v. Ortiz, 82 F.3d 1066, 1069 (D.C. Cir.
1996); United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir. 1995); United States
v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993): United States v. Teague, 953 F.2d
1525, 1530(11th Cir. 1992): Underwood v. Clark, 939 F.2d 473, 475, (7th Cir.
1991); United States v. Scott, 909 F.2d 488, 490 (11th Cir. 1990); Wright v.
Estelle, 572 F.2d 1071, 1073 (5th Cir. 1978)(en banc); United States ex rel.
Frierson v. Gramley, 952 F. Supp 578, 586 (N.D. Ill. 1997): Campos v. U.S., 930
F. Supp. 787, 790 (E.D.N.Y. 1996); Porter v. Singletary, 883 F.Supp. 660, 666
(M.D. Fla. 1995); Smith v. Campbell, 781 F.Supp. 521, 530 (M.D. Tenn. 1991),
aff’d without an opinion in 961 F.2d 1578 (6th Cir. 1992), cert. denied 113 S.Ct.
423 (1992); United States v. DiSalvo, 726 F.Supp. 596 (E.D. Pa. 1989); Siciliano
v. Vose, 834 F.2d 29 (lst Cir. 1987).

                                           8
              Tennessee has long held that an accused’s right to be heard at trial

is protected under Article 1, Section 9 of the Tennessee Constitution which

states, in pertinent part, “[t]hat in all criminal prosecutions, the accused hath the

right to be heard by himself and his counsel. . . .”8 Because the provision was

drafted in 1776 when a criminal defendant did not have the right to testify in his

own behalf, our supreme court at first interpreted this provision to grant an

accused the right to make an unsworn statement to the jury but not the right to

testify. Hopkins & Hoopers v. State, 78 Tenn. 204, 206 (1882); Wilson v. State.

50 Tenn. 232, 242-243 (1871). A hundred years after Wilson, in Campbell v.

State, 469 S.W.2d 506, (Tenn. Crim. App.), cert. denied (Tenn. 1971), the court

noted that under the Tennessee Constitution a person accused of a crime has

the right to be heard in his own defense, and that

              [w]hile it is true that no person accused of crime may
              be compelled to testify at his trial, he may do so if he
              chooses; and such evidence is competent if he
              desires to introduce the evidence in his own behalf or
              in any event if he consents to its introduction.

469 S.W.2d at 509. Campbell makes no reference to either Wilson v. State or

Hopkins & Hoopers v. State. Five years later, the supreme court revisited the

issue and specifically overruled the holdings of both Wilson and Hopkins. State

v. Burkhart, 541 S.W.2d 365, 369 (Tenn.1976). In Burkhart, the court held that a

criminal defendant has the right to self-representation but no right to make

unsworn statements to the jury. 541 S.W.2d at 371-372. The court reasoned

that since criminal defendants had been recognized by statute and by actual




       8
              Since 1858 the defendant’s right to be heard has been protected
by statute as well:
              Speedy trial -- Right to be heard. -- In all criminal
              prosecutions, the accused is entitled to a speedy trial,
              and to be heard in person and by counsel. Tenn.
              Code Ann. § 40-14-101 (1990).

                                          9
practice as competent witnesses, the better interpretation of Article 1, Section 9

is that:

               In all criminal prosecutions the accused has the right
               to testify as a witness in his own behalf and to be
               represented by counsel.

Id. at 371(emphasis added). In State v. Frazier, this court cited the Tennessee

Constitution and Campbell v. State in support of it’s statement that “[i]n

Tennessee, a person accused of a crime is constitutionally entitled to testify in

his own behalf.” State v. Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984).

See also State v. Danny Evans, No. 02C01-9205-CR-00109, slip op. at 6-8

(Tenn. Crim. App., Jackson, Nov. 10, 1993). 9 The Tennessee Court of Criminal

Appeals recognized the right to testify as being inherent in Article 1, Section 9 of

the Tennessee Constitution in 1971, Campbell v. State, 469 S.W.2d at 509,

and the Tennessee Supreme Court overruled contradictory precedent in 1975.

Burkhart v. State, 541 S.W.2d at 369. We reaffirm that, although the testimony

may not be compelled, the constitutions of the United States and the State of


           9
               Virtually every state court that has considered the issue has made
similar findings based on either their state constitutions or the U.S. Supreme
Court’s dicta in Rock v. Arkansas, 483 U.S. at 49-52; 107 S.Ct. at 2508-2709
and Faretta v. California, 422 U.S. 806, 829-834, 95 S.Ct. 2525, 2538-41 (1975).
See, e.g., LaVigne v. State, 812 P.2d 217, 219 (Alaska, 1991); People v.
Mosqueda, 5 Cal. App.3d 540, 545, 85 Cal. Rptr. 346, 348 (1970); People v.
Curtis, 681 P.2d 504, 509-510 (Colo. 1984); Boyd v. United States, 586 A.2d
670, 672 (D.C. App. 1991); Gill v. State, 632 So.2d 660, 662 (Fla.App. 1994);
King v. State, 391 S.E.2d 660, 662 (Ga. 1990); Tachibana v. State, 900 P.2d
1293, 1305 (Haw. 1995); Aragon v. State, 760 P.2d 1174, 1178 (Idaho, 1988);
People v. Raso, 602 N.E. 2d 53, 55 (Ill. App. 1992); Taylor v. State, 843 P.2d
682, 687 (Kan. 1992); Commonwealth v. Waters, 506 N.E. 2d 859, 864-865
(Mass. 1987); People v. Simmons, 364 N.W.2d 783, 784 (Mich. App. 1985);
State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979); Culberson v. State, 412
So.2d 1184, 1186 (Miss. 1982); State v. Hamm, 818 P.2d 830, 833 (Mont.
1991); Ingle v. State, 546 P.2d 598, 599 (Nev. 1976); State v. Savage, 577 A.2d
455, 471 (N.J. 1990); State v. Duran, 731 P.2d 374, 376 (N.M. App. 1986);
State v. Ray, 427 S.E.2d 171, 174 (S.C. 1993); State v. El-Tabech, 453 N.W.2d
91, 95 (Neb. 1990); State v. Brooks, 833 P.2d 362, 364 (Utah App. 1992); State
v. Mumley, 571 A.2d 44, 45 (Vt. 1989); State v. Thomas, 910 P.2d 475, 477
(Wash. 1996); State v. Neuman, 371 S.E.2d 77, 80-81(W.Va. 1988); State v.
Albright, 291 N.W.2d 487, 492 (Wis. 1980); Sanchez v. State, 841 P.2d 85, 87
(Wyo. 1992).

                                         10
Tennessee recognize that a criminal defendant has the right to testify for the

defense at trial.



B. A Right Personal to the Defendant

              The United States Constitution grants essentially two categories of

rights: those that defense counsel may waive on the defendant’s behalf and

those that are so fundamental and personal that only the defendant may waive

them. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 546 (1965). Those

rights included in the former are generally matters of trial strategy and tactics

such as what evidence should be introduced, what stipulations should be made,

and what pre-trial motions should be filed. United States v. Teague, 953 F.2d

1525, 1531 (11th Cir. 1992). Although the United States Supreme Court has not

directly addressed the issue, the Court stated in dicta that “the accused has the

ultimate authority to make certain fundamental decisions regarding the case, as

to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an

appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312

(1983)(emphasis added). The right to testify is a necessary corollary to the Fifth

Amendment guarantee against compelled testimony, Rock v. Arkansas, 483

U.S. at 52, 107 S.Ct. at 2709, and “every criminal defendant is privileged to

testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S.

222, 225, 91 S.Ct. 643, 645 (1971).



              The vast majority of federal courts that have considered the issue

have concluded that the right to testify is a fundamental right that is personal to

the defendant.10 The most serious decisions in a criminal case are whether to


       10
             See, e.g., United States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996);
United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996); United States v.
Pennycooke, 65 F.3d 9, 11 (3rd. Cir. 1995); United States v. Joelson, 7 F.3d

                                         11
have counsel or represent oneself, to stand trial or to plead guilty, to be tried by a

judge or a jury, and to tell one’s story or to keep silent, United States v. Boyd, 86

F.3d 719, 723 (7th Cir. 1996), and the decision whether to testify may be the

single most important factor in a criminal case. United States v. Teague, 953

F.2d 1525, 1533 (11th Cir. 1992). “In fact, the most important witness for the

defense in many criminal cases is the defendant himself,” Rock v. Arkansas,

483 U.S. 44, 52, 107 S.Ct. 2704, 2709 (1987), and as the Court has noted in

another context, ”[t]he 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, 655 (1961)(plurality

opinion).   Most state courts that have considered the issue have concluded

that the accused’s right to testify is both fundamental and personal and may be

waived only by the defendant.11



174, 177 (9th Cir. 1993); United States v. Teague, 953 F.2d 1525, 1532 (11th
Cir. 1992); United States v. Scott, 909 F.2d 488, 490(11th Cir. 1990); Don v. Nix,
886 F.2d 203, 207(8th Cir. 1989); Siciliano v. Vose, 834 F.2d 29 (1st Cir. 1987);
Campos v. United States, 930 F.Supp. 787, 790 (E.D.N.Y. 1996); Porter v.
Singletary, 883 F.Supp. 660, 666 (M.D. Fla. 1995); Smith v. Campbell, 781
F.Supp. 521, 530 (M.D. Tenn. 1991), aff’d by memorandum in 961 F.2d 1578
(6th Cir. 1992); United States v. DiSalvo, 726 F.Supp. 596 (E.D. Pa. 1989).
       11
               LaVigne v. State, 812 P.2d 217, 219-220 (Alaska, 1991); People v.
Curtis, 681 P.2d 504, 509-510 (Colo. 1984); Boyd v. United States, 586 A.2d
670, 673 (D.C. App. 1991); Gill v. State, 632 So.2d 660 (Fla. App. 1994);
Tachibana v. State, 900 P.2d 1293, 1299 (Haw. 1995); Aragon v. State, 760
P.2d 1174, 1179 (Idaho, 1988); People v. Raso, 602 N.E.2d 53, 56 (Ill. App.
1992); Commonwealth v. Freeman, 564 N.E. 2d 11, 14 (Mass. App. 1990); State
v. Rosillo, 281 N.W.2d 877, 878-79 (Minn. 1979); Culberson v. State, 412 So.2d
1184 (Miss. 1982); Ingle v. State, 546 P.2d 598 (Nev. 1976); State v. Savage,
577 A.2d 455, 471 ( N. J. 1990); State v. Ray, 427 S.E.2d 171, 174 (S.C. 1993);
State v. Brooks, 833 P.2d 362, 364 (Utah App. 1992); State v. Mumley, 571 A.2d
44,45 (Vt. 1989); State v. Thomas, 910 P.2d 475, 477 (Wash. 1996); State v.
Neuman, 371 S.E. 2d 77, 81 (W.Va. 1988); Sanchez v. State, 841 P.2d 85, 89
(Wyo. 1992). In a few states, however, courts have held that, absent exceptional
circumstances, decisions to put on a defense or to waive a defendant’s right
against self-incrimination at trial are strategic choices which counsel may make
without defendant’s consent. State v, Rodriguez, 612 P.2d 484, 490 (Ariz.
1980); State v. Mann, 934 P.2d 784, 789 (Ariz. 1997); King v. State, 391 S.E.2d
660, 662 (Ga. 1990); State v. Albright, 291 N.W.2d 487, 492 (Wis. 1980).

                                         12
              This court, relying upon the American Bar Association Standards

for Criminal Justice, has previously found that the decision as to whether an

accused should testify at trial belongs to the accused. Vermilye v. State, 754

S.W.2d 82, 88 (Tenn. Crim. App. 1987). The standards provide:

              (a) Certain decisions relating to the conduct of the
              case are ultimately for defense counsel. The
              decisions which are to be made by the accused after
              full consultation with counsel are:
                      (I) what plea to enter,
                      (ii) whether to waive jury trial; and
                      (iii) whether to testify in his or her own behalf.

1 Standards for Criminal Justice Standard 4-5.2(a) (2d ed. 1980). The

commentary to this section states that “because of the fundamental nature of

these three decisions, so crucial to the accused’s fate, the accused must make

the decisions.” Id. commentary. In accordance with the weight of authority in

the federal courts, in the decisions of our sister states, and in our prior decisions,

we hold that the right to testify in one’s own behalf in a criminal trial is a

fundamental and personal right that may be waived only by the accused.



C. Waiver of the Right

              We must next consider what constitutes waiver of the right to

testify, what obligations defense counsel has and whether the trial court is

required to determine, sua sponte, whether the defendant is voluntarily and

knowingly waiving the right.



              In an unpublished case, one panel of this court stated that “the

defendant’s conduct provides a sufficient basis from which to infer that the right

to testify has been waived,” and that “the trial court had no duty to advise the

defendant of his right to testify, nor . . . to ensure that on the record waiver had

occurred.” State v. Danny L. Evans, No. 02C01-9205-CR-00109, slip op. at 11


                                           13
(Tenn. Crim. App., Jackson, Nov. 10, 1993), perm. app. denied (Tenn. 1994). 12

The panel relied solely upon the decision in United States v. Martinez, 883 F.2d

750 (9th Cir. 1989).



             The Ninth Circuit decided Martinez in 1989 only two years after the

Supreme Court’s decision in Rock v. Arkansas, and a number of the federal

courts of appeals and various state courts have ruled on this issue since that

time.   Moreover, the Ninth Circuit vacated Martinez on other grounds in United

States v. Martinez, 928 F.2d 1470 (9th Cir. 1991). Therefore, we deem it

prudent to reexamine the issue in light of more recent decisions.



             Courts throughout the country have generally adopted one of three

differing approaches to determine whether a defendant has effectively waived

the right to testify. The general rule is that a personal and fundamental right may

be waived only if there is evidence in the record demonstrating “an intentional

relinquishment or abandonment of a known right or privilege.” Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). A number of our sister

states require or strongly encourage the trial court to engage each defendant in

an on-the record colloquy to ensure that any waiver of the defendant’s right to

testify is knowing and voluntary.13 Other courts have held that it may be

“advisable,” at least under some circumstances, for trial courts to place a


        12
             The Evans court held that since the petitioner had neither alleged
nor proven that the alleged constitutional violation had an adverse effect on his
case he was not entitled to post-conviction relief.
        13
             LaVigne v. State, 812 P.2d 217 (Alaska, 1991); People v. Curtis,
681 P.2d 504 (Colo. 1984); Boyd v. United States, 586 A.2d 670 (D.C. App.
1991); Culberson v. State, 412 So. 2d 1184 (Miss. 1982); Brown v. State, 453
S.E. 2d 251 (S.C. 1994) (only in capital cases); State v. Neuman, 371 S.E.2d 77
(W.Va. 1988); Tachibana v. State, 900 P.2d 1293 (Haw. 1995).



                                        14
defendant’s waiver on the record.14 These courts reason that since the rights at

issue are fundamental to a fair trial, the courts have, under Johnson v. Zerbst, “a

serious and weighty responsibility” to determine whether the accused intelligently

and competently waived the right. Boyd v. United States, 586 A.2d 670, 675

(D.C. App. 1991). In addition, proponents contend, advisement on the record will

preclude post-conviction disputes between the defendant and counsel over the

issues, and, if the issue does arise, the record will facilitate post-conviction and

appellate review. People v. Curtis, 681 P.2d 504, 515 (Colo. 1984). Under this

approach, a trial judge conducts an inquiry into the circumstances of the waiver

outside the jury’s presence if the defense rests without calling the defendant to

the stand. Curtis, 681 P.2d at 514-515.



              Other courts have rejected the colloquy requirement for two

reasons. First, virtually every court considering the issue has concluded that a

trial court is under no constitutional requirement to advise a defendant of the

right to testify. See e.g. , United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir.

1996); United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995); United States

v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993); United States v. Teague, 953 F.2d

1525, 1532 n. 8 ( 11th Cir. 1992). The right to testify is correlative with the right

to remain silent. The right to remain silent is waived by the act of taking the


       14
              United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996)(may be
advisable under some circumstances); United States v. Pennycooke, 65 F.3d
9,13 (3d Cir. 1995)(within discretion of trial court in certain circumstances); State
v. Gulbrandson, 906 P.2d 579, 598 (Ariz. 1995); Woodward v. United States,
626 A.2d 911, 915 (D.C. App. 1993); Gill v. State, 632 So.2d 660, 662 (Fla. App.
1994); State v. Hoffman, 778 P.2d 811, 814 (Idaho App. 1989); Phillips v. State,
782 P.2d 381, 382 (Nev. 1989); State v. Mumley, 571 A.2d 44 (Vt. 1989). We
note that one panel on the Tennessee Court of Criminal Appeals has advised
that the defendant’s waiver of the right to testify be placed on the record. Walter
Keith Johnson v. State, No. 1037 (Tenn. Crim. App., Knoxville, Sept. 2, 1992).
However, the Tennessee Supreme Court granted permission to appeal and
affirmed the case per curiam on Feb. 22, 1994. The court ordered that the
opinion not be published.

                                          15
stand, and the trial court is not required to ascertain for the record whether the

defendant is knowingly and voluntarily waiving those rights. State v. Thomas,

910 P.2d 475, 479 (Wash. 1996); Commonwealth v. Freeman, 564 N.E.2d 11,

15 (Mass. App. 1990). Second, courts have rejected the requirement fearing

that a formal waiver requirement “might provoke substantial judicial participation

that could frustrate a thoughtfully considered decision by the defendant and

counsel. . . ,” People v. Simmons, 364 N.W. 2d 783, 785 (Mich.App.

1985)(quoting from State v.Albright, 291 N.W.2d 487, 490 (Wis. 1980)), and a

discussion between the trial judge and the accused “might have the undesirable

effect of influencing the decision not to testify.” State v. Thomas, 910 P.2d at

479.15



              A few courts have adopted the so-called “demand” rule. In these

jurisdictions, a defendant who fails to complain about the right to testify during

trial is conclusively presumed to have waived that right.16 These courts will not

entertain a post-trial challenge based on the right to testify unless the defendant

brought the matter to the attention of the trial court. United States v. Edwards,

897 F.2d 445, 447 (9th Cir. 1990). The demand rule is justified in several ways.

The right may be viewed not as “fundamental” but a matter of trial strategy, and

therefore counsel may waive the right without consulting the defendant. State v.


         15
              See also Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir. 1997);
United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995); United States v.
Joelson, 7 F.3d 174, 178 (9th Cir. 1993); United States v. Scott, 909 F.2d 488,
492-93 (11th Cir. 1990); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987); King
v. State, 391 S.E.2d 660, 662 (Ga. App. 1990); Aragon v. State, 760 P.2d 1174,
1178 (Ida. 1988); People v. Simmons, 364 N.W.2d 783, 785 (Mich. App. 1985).
         16
             United States v. Boyd, 86 F.3d 719 (7th Cir. 1996) (dicta); United
States v. Edwards, 897 F.2d 445 (9th Cir. 1990); State v. Gulbrandson, 906 P.2d
579 (Ariz. 1995); People v. Bradford, 929 P.2d 544 (Calif. 1997); Taylor v. State,
843 P.2d 682 (Kan. 1992); State v. Hamm, 818 P.2d 830 (Mont. 1991); People
v. Simmons, 364 N.W.2d 783 (Mich. App. 1985); State v. Albright, 291 N.W.2d
487 (Wis. 1980).

                                         16
Rodriguez, 612 P.2d 484, 489-91(Ariz. 1980); King v. State, 391 S.E.2d 660, 662

(Ga. App. 1990). Some courts have presumed that a defendant, educated by

television and past courtroom experiences, has knowledge of his right to testify.

United States v. Edwards, 897 F.2d 445, 447 (9th Cir. 1990); United States v.

Martinez, 883 F.2d 750, 761 (9th Cir. 1989), vacated on other grounds, 928 F.2d

1470 (9th Cir. 1991); Taylor v. State, 843 P.2d 682, 688 (Kan. 1992). At least

one court has concluded that, because of the peculiar nature of this right, it does

not “attach” unless the accused claims it at trial. State v. Albright, 291 N.W.2d

487, 490-491 (Wis. 1980); see also United States v. Teague, 953 F.2d 1525,

1537 (11th Cir. 1992)(concurrence by J. Birch).



              Opponents of the “demand” rule argue it is fatally flawed because it

ignores the basic realities that both trial judges and defendants face. Tachibana

v. State, 900 P.2d 1293 (Haw. 1995); Boyd v. United States, 586 A.2d 670, 677

(D.C. App. 1991). Requiring that a defendant address the court directly during

the trial and express the desire to testify places a heavy burden on the

defendant. United States v. Ortiz, 82 F.3d 1066, 1071 (D.C. 1996). Even if a

defendant is aware of the right to testify, the defendant may not be aware that an

objection must be made or that the right will forever be lost. Boyd, 586 A.2d at

677. Because the waiver of a fundamental constitutional right must be “the

intentional relinquishment or abandonment of a known right or privilege,” finding

waiver upon a presumption of knowledge may be problematic. Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938). Moreover, these courts

note, it is a reality of the courtroom that defendants who speak out of turn at trial

are often quickly reprimanded and instructed to address the court only through

counsel. United States v. Teague, 908 F.2d 752, 759 (11th Cir. 1990).




                                         17
              A third group of courts has devised a compromise between the two

approaches previously described. This method has been called the “post-trial

challenge approach.” Boyd v. State, 586 A.2d 670, 677 (D.C. App. 1991). In

this approach, the trial judge need not, sua sponte, question the defendant

during the trial, but, even if the defendant does not bring the matter to the

attention of the trial court, the defendant is free to bring a post-trial challenge

generally based on the ineffective assistance of counsel. This approach

appears to be the practice in the largest number of jurisdictions, both state and

federal.17 These courts hold that defense counsel has the responsibility to

advise the defendant of the reciprocal rights to testify or to remain silent and to

explain the tactical advantages or disadvantages of each, and, although the

decision is one that is fraught with implications for defense strategy, the ultimate

decision rests with the defendant. State v. Savage, 577 A.2d 455, 473 (N.J.

1990). The duty of providing advice and ensuring that any waiver of the right to

testify is knowing and intelligent rests not with the trial court, but with defense

counsel. United States v. Pennycooke, 65 F.3d 9, 12 (11th Cir. 1995).



              The courts that follow the demand rule and those that adhere to the

post-trial challenge approach agree that a trial court may presume that the



       17
             See, e.g. Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997);
United States v. Ortiz, 82 F.3d 1066 (D.C. Cir. 1996); United States v.
Pennycooke, 65 F.3d 9 (3d Cir. 1995); United States v. Teague, 953 F.2d 1525
(11th Circ. 1992); Underwood v. Clark, 939 F.2d 473 (7th Cir. 1991); Siciliano v.
Vose, 834 F.2d 29 (1st Cir. 1987); Campos v. United States, 930 F.Supp. 787
(E.D.N.Y. 1996); Porter v. Singletary, 883 F.Supp. 660 (M.D.Fla. 1995); Smith v.
Campbell, 781 F.Supp. 521 (M.D. Tenn. 1991); United States v. DiSalvo, 726
F.Supp. 596 (E.D.Pa. 1989); People v. Mosqueda, 5 Cal.App.3d 540, 85 Cal.
Rptr. 346 (1970);Gill v. State, 632 So.2d 660 (Fla. App. 1994); Commonwealth v.
Freeman, 564 N.E.2d 11 (Mass. App. 1990); State v. Rosillo, 281 N.W. 877
(Minn. 1979); State v. Savage, 577 A.2d 455 (N.J. 1990); State v. Brooks, 833
P.2d 362 (Utah. App. 1992); Brown v. State, 453 S.E.2d 251 (S.C. 1994); State
v. Mumley, 571 A.2d 44 (Vt. 1989); State v. Thomas, 910 P.2d 475 (Wash.
1996).

                                          18
defendant has knowingly and voluntarily waived the right to testify from the

defendant’s conduct. However, a major difference between the two is that those

that follow the “demand” rule find that the defendant’s silence at trial not only

waives the constitutional right but denies the defendant the possibility of ever

rebutting that presumption. The post-trial challenge approach allows a

defendant to demonstrate, either on direct appeal or in a post-conviction

proceeding, that his waiver was neither knowing nor voluntary because defense

counsel was ineffective.



              Although Tennessee courts have not addressed this issue directly,

the post-trial challenge approach is most consistent with the manner in which

Tennessee courts have resolved the question of whether an accused has been

denied the right to testify. In Vermilye v. State, 754 S.W.2d 82 (Tenn. Crim. App.

1987), a post-conviction petitioner claimed ineffective assistance of counsel due

to the failure of defense counsel to prepare him to testify at trial and thereby

denied him the right to testify effectively. 18 This court held that counsel was not

ineffective as he had met with the petitioner many times, the record

demonstrated that the petitioner had made the decision to testify, and the

petitioner had failed to show how his attorney could have better prepared him to

testify. Id. at 88. In an unpublished case, a panel of this court held that, under

Tennessee law, the trial court is not required to hold, sua sponte, a “jury-out”

hearing for the purpose of advising the defendant on the record that he has the




       18
              Vermilye was decided before the decision in Rock v. Arkansas.
The court discussed neither the constitutionality of the right nor the issue of
waiver but held, based on A.B.A. Standards of Criminal Justice, that the
decision to testify or to remain silent should be made by the defendant. 754
S.W.2d at 88.

                                         19
right to testify or to remain silent and determining the defendant’s wishes. 19

State v. Danny L. Evans, No. 02C01-9205-CR-00109, slip op. at 10 (Tenn. Crim.

App., Jackson, Nov. 10, 1993), perm. app. denied (Tenn. 1994). At the

hearing, petitioner admitted that he had discussed testifying with his counsel and

that counsel did not tell him not to testify. Evans, slip op. at 6. The court noted

that the petitioner was “no stranger to the criminal justice system” and affirmed

the trial court’s conclusion that the defendant’s conduct provided a sufficient

basis from which to infer that he had waived the right without the necessity of

holding an on-the-record inquiry. Evans, slip op. at 10 -11.20 Both Vermilye and

Evans were post-conviction proceedings in which the petitioners alleged that trial

counsel had been ineffective by denying them the right to testify on their own

behalf. Neither had raised the issue in the trial court, and, in both instances, this




       19
                In Evans, the court recognized the practice of many criminal
defense lawyers to request a “jury-out” hearing in which the attorney places the
defendant on the stand and questions the defendant about the decision on the
record. Slip op. at 10. We believe this to be a prudent practice in many
instances. Trial courts have it within their discretion to allow such hearing to take
place when defense counsel requests it or extraordinary circumstances alert the
trial court to the necessity.
       20
               Our research uncovered two other cases that have some bearing
on this issue. In a post-conviction proceeding, a panel of this court found that
defense counsel’s belated remarks did not suffice to show an intelligent and
knowing waiver of the right to testify and found that counsel had denied the
petitioner the right to testify at trial. Walter Keith Johnson v. State, No. 1037,
slip op. at 6 (Tenn. Crim. App., Knoxville, Sept. 2, 1992), perm. to appeal
granted (Tenn. 1993), aff’d per curiam in Walter Keith Johnson v. State, No.
03S01-9306-CR-00032 (Tenn., Knoxville, Feb. 22, 1994) (not for publication). In
its discussion of the issue, the panel recommended that defense counsel place
the defendant’s decision on the record. Id. at 4. In a second case, the United
States District Court for the Middle District of Tennessee considered whether a
defendant’s constitutional rights had been violated by the trial judge’s refusal to
allow him to testify after the state’s rebuttal case had ended. Smith v. Campbell,
781 F.Supp. 521, 530 (M.D.Tenn. 1991) The court concluded that the defendant
had knowingly and voluntarily waived his right to testify upon advice of counsel
and that the trial court had not erred in refusing to allow him to testify after the
state’s rebuttal because the defendant’s proffered testimony would not have
been appropriate as rebuttal. Id.

                                         20
court concluded that the record contained sufficient proof to demonstrate that the

defendant had made the decision based on advice of counsel.



              For the reasons stated above, we affirm that in Tennessee the trial

court is not required to engage each defendant, sua sponte, in an on-the record

colloquy to ensure that any waiver of the defendant’s right to testify is knowing

and voluntary. Because of the delicate balance between a defendant’s right to

remain silent and his equally fundamental right to testify, Campbell v. State, 469

S.W.2d 506, 509 (Tenn. Crim. App. 1971), we believe that the responsibility for

informing the defendant of this right lies with defense counsel. A defendant

should personally make the decision whether to testify after receiving counsel’s

careful and thorough advice as to the benefits and detriments of placing the

defendant’s testimony before the jury. Absent any indications to the contrary, a

trial judge may presume from the defendant’s conduct that the defendant

personally made a knowing and intelligent decision to testify or not to testify

upon the advice of competent counsel. However, in accordance with Tennessee

case law and that of numerous federal and state jurisdictions, the defendant may

attempt to rebut that presumption in a post-trial challenge even if the defendant

did not bring the matter to the trial judge’s attention during the trial. See, e.g.,

United States v. Pennycooke, 65 F.3d 9, 13 (3rd Cir. 1995); United States v.

Teague, 953 F.2d 1525, 1534 (11th Cir. 1992); People v. Bradford, 929 P.2d

544, 574 (Cal. 1997); King v. State, 391 S.E.2d 660, 662 (Ga. App. 1990);

Commonwealth v. Freeman, 564 N.E. 2d 11, 14 (Mass. App. 1990); State v.

Savage, 577 A.2d 455, 473 (N.J. 1990).



II. Application of the law to the facts of this case




                                          21
              The issue of whether defense counsel rested his case without

advising and consulting with the defendant is ultimately a question of fact.

Smith v. Campbell, 781 F.Supp. 521, 531(M.D. Tenn. 1991). Both Napoleon

Momon and the attorney who represented him at trial testified that the attorney

had decided that Momon would not testify and that the attorney informed Momon

through his son as they were reentering the courtroom. Although the attorney

explained to the defendant’s son that two jurors in the previous trial had not

found Momon to be credible, the attorney clearly stated that he was passing on

the information rather than giving advice upon which the defendant could make

his own decision. Moreover, since the defendant was notified of the decision at

the door to the courtroom, there was little if any opportunity for him to engage in

any discussion with his attorney. 21



               In his written findings of fact, the post-conviction judge found that

trial counsel made the decision not to call the defendant to the stand. However,

the judge erroneously determined that since the decision was a matter of trial

strategy, counsel was not ineffective. Because the right to testify is a

fundamental constitutional right that is personal to the defendant, only the

defendant may waive that right. Although the trial judge was justified in

presuming at trial that the defendant had knowingly and intelligently waived his

right to testify, uncontradicted testimony at the hearing conclusively

demonstrates that his attorney neither advised him that he had the right to testify

if he so desired nor discussed with him the advantages and disadvantages that

might flow from his decision. Counsel knew that the defendant’s statements


       21
                The situation would have precluded much discussion between any
defendant and attorney, but for this particular defendant, who is deaf and
partially blind in addition to being confined to a wheel chair, his attorney’s
pronouncement left him with little opportunity to object.


                                         22
were inconsistent in some regards and that a letter from Momon to his sister-in-

law cast the defendant in an unfavorable light.22 Yet he did not raise the

question of Momon’s testimony until the state’s proof was complete or nearly

complete. In fact, the record indicates that his preparations for the second trial

did not include meeting with his client. In other words, trial counsel never

informed the defendant of his ultimate right to decide whether or not to testify

and failed to consult with and advise his client on what may be the single most

important decision made at trial. Boyd v. United States, 586 A.2d 670, 673

(D.C.App. 1991). Counsel, despite the directives of the American Bar

Association’s Standards of Criminal Justice and the pronouncements of the

Tennessee Supreme Court in Campbell and Burkhart and the holding of this

court in Vermilye, apparently believed that it was his prerogative to make the

decision as to whether the petitioner would testify. In this respect, counsel’s

conduct “fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 690; 104 S.Ct. 2052, 2065 (1984).



              Our inquiry, however, does not stop with the first prong of the

Strickland standard. We must now consider whether counsel’s error was so

serious as to deprive the defendant of a fair trial and to call into question the

reliability of the outcome. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct.

at 2064; United States v. Teague, 935 F.2d 1525, 1534, (11th Cir. 1992);

Campos v. United States, 930 F.Supp. 787, 793 (E.D.N.Y. 1996); Porter v.

Singletary, 883 F.Supp. 660, 667 (M.D. Fla. 1995). 23


       22
             Counsel mentioned the inconsistent statements in his opening and
attempted to explain them away as natural given the conditions under which the
shooting occurred and length of time between the two statements.
       23
              But see, Boyd v. United States, 586 A.2d 670, 673 (D.C.App. 1991)
(Chapman standard inapplicable where right is designed to protect human
dignity); State v. Rosillo, 281 N.W. 2d 877, 879 (Minn. 1979) (denial of the right

                                         23
              A Tennessee case, although not directly on point, provides

guidance in our determination of whether Strickland’s second prong has been

satisfied. In State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991), this

court considered on direct appeal whether trial counsel had been ineffective in

that, after he had told the jury in his opening statement that the defendant and

other witnesses would testify about the “battered wife syndrome,” he changed

his mind and rested without putting on any proof. Counsel then referred to the

absent evidence again in his closing argument. Id. at 225-226.      Unlike the

attorney in the present case, defense counsel in Zimmerman discussed the

matter with his client and she confirmed her approval of his decision in a jury-out

hearing. Zimmerman, 823 S.W.2d at 221. There was, therefore, no deprivation

of the constitutional right to testify. The issue addressed is whether the

attorney’s decision to rest without putting on the defendant or several other

witnesses was ineffective. In determining that counsel had been ineffective, the

Zimmerman court cited five factors which tend to indicate ineffective assistance

when defense counsel fails to call a defendant to the stand:



              (1)   only the victim and the defendant were present
              when the offense was committed;

              (2)     only the defendant could present a “full version
              of [the defendant’s] theory of the facts”;

              (3)   the defendant’s testimony could not be
              impeached by prior criminal convictions;

              (4)    the defendant could give an account of the
              relationship with the victim; and



to testify is never harmless error). We note that, in Campbell v. State, the Court
of Criminal Appeals found the trial court’s failure to allow certain testimony by
the defendants to be “harmless beyond a reasonable doubt” under Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824 (1967). Campbell, 469 S.W.2d at 509.
However Campbell was a direct appeal and involved an action of the trial court
rather than a collateral attack based on the ineffective assistance of counsel.

                                        24
              (5)    the attorney had let in objectionable, prejudicial
              testimony with the intention of clarifying it with the
              testimony of the defendant.

State v. Zimmerman, 823 S.W.2d at 227 (quoting from State v. Gfeller, No. 87-

59-III (Tenn. Crim. App., Nashville, July 24, 1987). The court concluded that all

five of these factors were applicable and that, in addition, other evidence

favorable to the defendant would have come into the record had the other

witnesses testified as planned Id.



              We recognize the special nature of a defendant’s testimony in a

criminal trial. A defendant’s testimony gives the jury “an immediate and visible

impression of him as a person” and may “color their view of the entire case

against him. “ People v. Curtis, 681 P.2d 504, 513 (Colo. 1984). Only the

defendant can present direct evidence of his state of mind, and when an

accused takes the stand he has had “his day in court” in the most literal sense.

State v. Neuman, 371 S.E.2d 77, 81 (W.Va. 1988). Therefore, a defendant’s

testimony is often of greater significance than that of any other witness.



              In this case, as in Zimmerman and Gfeller, only the victim and the

defendant were present when the offense occurred and only the defendant could

present a full version of the defense theory of the facts and testify to his

relationship with the victim. If he had testified, he may have been able to blunt

the prosecution’s attack on his credibility in closing argument by explaining the

inconsistencies between his statement to the police and his deposition taken in a

related civil matter. He may have convinced the jury that his letter propositioning

his sister-in-law was inconsequential. This defendant, in particular, who has

many physical infirmities, may have colored the jury’s view of the entire case had

he testified. And, as the defendant points out, when he testified at his first trial,


                                          25
the jury acquitted him of first degree murder and was unable to return a verdict

on second degree murder.



               On the other hand, Momon’s theory of the facts was before the jury

in his statement to the police and in his deposition. Although there were

inconsistencies between the two statements, the inconsistencies concerned

rather minor points such as whether he put the pistol in the drawer or on the

stand beside the bed, or the precise manner in which he was holding the pistol

when he alleged she grabbed for it. Moreover, if Momon had testified, the state

may have been able to impeach Momon’s credibility with a twenty-year old

conviction for manslaughter. The fact that the jury in the first trial could not reach

a verdict on second-degree murder does not necessarily mean that the

defendant’s testimony would have changed the result in the second trial.

Defendants are not infrequently convicted in a second trial despite having a

“hung” jury in the first.   The record contains indications that Momon may not

have been a good witness. According to the trial attorney, he interviewed two

jurors after the first trial. These jurors told him that they had not believed

Momon’s story of an accidental shooting, and the trial judge at the sentencing

hearing also found Momon to be without remorse and lacking credibility.



               Moreover, the record before us lacks sufficient indication of what

Momon’s testimony would have been had he testified. Although he took the

stand at the post-conviction hearing, little of his testimony reflects what he might




                                          26
have said at trial.24 The transcript of the first trial is not in the record on appeal. 25

Unlike the jury in Zimmerman, this jury was not led to believe that the defendant

would testify, nor were other witnesses favorable to the defense silenced by the

unilateral decision to rest without putting on any proof. Despite the obvious

importance of any defendant’s testimony, it would be sheer speculation to

evaluate the potential impact of Momon’s testimony absent some knowledge of

what that testimony would have been.



               We find, therefore, that although trial counsel’s performance fell

below an objective standard of reasonableness under prevailing professional

norms so that he was not functioning as "counsel" guaranteed by the United

States Constitution, the petitioner has failed to meet his burden of demonstrating

that there is a reasonable probability that but for counsel's failure to inform and

advise the defendant of his right to testify, the result of the proceeding would

have been different. Strickland, 466 U.S. at 695.



III. Other Allegations of Ineffective Assistance of Counsel

               The petitioner also contends that trial counsel was ineffective

because he failed to raise the theory of self-defense, because he did not

investigate the state’s witnesses thoroughly, and because he failed to confer with

the defendant prior to his second trial. We have already found that, prior to the

second trial, the attorney failed to inform and advise his client about his right to

testify, but that, on these facts, we are unable to conclude that this deficiency


       24
               At one point, counsel asked Momon what he told his trial attorney
about the letter to his sister-in-law in which he invites her to let him “love her just
once.” Momon readily admitted writing the letter and his brief remark implies that
his wife had somehow initiated the communication.

       25
               See footnote 4 above.

                                            27
deprived the defendant of a fair trial or created serious questions about the

validity of the outcome. With respect to the other allegations, the trial judge

found that the defendant had never raised the issue of self-defense with his

attorney and that the entire defense was predicated on Momon’s statement that

the shooting was accidental. The trial judge accredited the attorney’s testimony

and found that the attorney had met with the defendant and his son numerous

times prior to the first trial and that he was sufficiently familiar with the case at

the second trial. After a thorough review of the record, we conclude that the

evidence does not preponderate against the trial judge’s findings and that, with

respect to these matters, trial counsel performance was not deficient.



IV. Conclusion

              The decision to waive or exercise the constitutional right to testify

must be made by the accused with the thorough and careful advice of counsel.

In this case, the petitioner’s trial counsel failed to advise him of his constitutional

right to testify and made the unilateral decision that the petitioner would not take

the stand at the second trial. In this respect, trial counsel’s performance was

deficient. However, on this record, we are unable to conclude that, but for

counsel’s error, there is a reasonable probability that the outcome of the trial

would have been different.



              We affirm the judgment of the post-conviction court.




                                                   __________________________
                                                   CURWOOD W ITT, Judge



______________________________

                                           28
JOHN H. PEAY, Judge



______________________________
JOSEPH M. TIPTON, Judge




                                 29
