              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,                    )
                                   )
              Appellant,           )      No. 03C01-9605-CR-00187
                                   )
                                   )       Hamilton County
v.                                 )
                                   )       Honorable Stephen M. Bevil, Judge
                                   )
STATE OF TENNESSEE,                )       (Post-Conviction)
                                   )
              Appellee.            )



                                 DISSENTING OPINION



              I agree with most of the majority opinion. However, I respectfully disagree

with the standard it uses to conclude that no prejudice was shown to justify relief on the

ground of ineffective assistance of counsel. Also, I believe that the case should be

remanded for further hearing and detailed findings of fact.



              With the majority opinion’s determination that the petitioner’s right to

testify is a fundamental and personal constitutional right, then the loss of that right

would violate the constitution regardless of counsel’s conduct. In terms of a criminal

trial, error of constitutional dimension is ordinarily considered harmful unless the state,

as the beneficiary of the error, can show beyond a reasonable doubt that the error was

harmless. See Chapman v. California, 386 U.S. 18, 24-26, 87 S. Ct. 824, 828-29

(1967). Moreover, some violations are of a constitutional right so basic to a fair trial that

their infraction has never been treated as harmless. See State v. Bobo, 814 S.W.2d

353, 357 (Tenn. 1991) (listing examples).
              As for the issue in this case, I note that the right to testify has been viewed

as a constitutional right whose violation brings into play the Chapman harmless error

analysis. See Campbell v. State, 469 S.W.2d 506, 509 (Tenn. Crim. App. 1971);

Wright v. Estelle, 549 F.2d 971, 974 (5th Cir. 1977), aff’d en banc, 572 F.2d 1071, 1072

(1978). I do not believe that this standard should change just because the issue of the

ineffective assistance of counsel is involved. Rather, when the deficient performance

by counsel is proven to involve a violation of a separate fundamental constitutional trial

right, then the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984), should essentially be presumed to be met so as to require the

state to prove that the violation was harmless beyond a reasonable doubt.



              As a matter of fact, the violation of the fundamental constitutional right to

testify can be viewed as an independent ground for post-conviction relief. Under such a

view, counsel’s deficient conduct is the means by which the petitioner explains why the

ground for relief was not waived for failing to raise it in the direct appeal of his

conviction. Under either route, though, the fact that there exists a constitutional

violation other than the ineffective assistance of counsel cannot be ignored.



              As far as prejudice is concerned, I acknowledge that the majority opinion’s

analysis of the record on appeal presents logical inferences about the lack of

importance of the defendant testifying. However, I am far from convinced beyond a

reasonable doubt that the defendant’s testimony would add nothing significant to his

case. The fact that he testified in the first trial that resulted in an acquittal of first degree

murder and a hung jury for second degree murder is significant. Moreover, the fact that

the only witness to the events was the defendant renders his credibility an important

issue in the case. Under these circumstances, it is hard for me to see how the

defendant’s testimony before the jury could be deemed completely immaterial. In fact, I




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believe that under the circumstances in this case, that testimony could very well be

decisive.



              In any event, the trial court made no findings of fact except those inherent

in its conclusion that the petitioner’s trial attorney acted within the range of competence

demanded of counsel in a criminal case. Thus, when we conclude that the trial

attorney’s actions were deficient, we are left with no factual findings by the trial court.



              This means that no finding has been made that would lead to a conclusive

determination that the petitioner’s right to testify was, in fact, lost at the hands of the

trial attorney. I acknowledge that if all of the testimony from the petitioner and the trial

attorney are taken as true, one legitimate inference that may be drawn is that the

petitioner’s right to testify was thwarted by counsel. However, the issue of the credibility

of the witnesses is for the trial court to decide, and I believe that the inferences drawn in

the majority opinion are not conclusive ones on the record before us. For instance, I

believe that it is significant that the petitioner did not testify about any options and rights

of which he was aware, nor did his trial attorney testify, nor was he asked to testify,

about whether the petitioner was aware of his right to testify and whether the petitioner

said that he wanted to testify.



              Under all of the circumstances, I believe that justice would be best served

by a remand of the case and a further hearing conducted regarding the right to testify

issue. Also, the trial court should make findings of fact that are materially relevant to

the issue along with its conclusions of law. For the foregoing reasons, I respectfully

dissent.



                                                   ____________________________
                                                   Joseph M. Tipton, Judge




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