                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                            December 15, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

 STATE OF WASHINGTON,                                                   No. 45942-6-II

                                 Respondent,                     UNPUBLISHED OPINION

         v.

 MATTHEW JACK LITTLE,

                                 Appellant.

        BJORGEN, A.C.J. – A jury returned a verdict finding Matthew Jack Little guilty of felony

harassment of a criminal justice participant. Little appeals his conviction, asserting that (1) the

State failed to present sufficient evidence in support of his conviction, (2) the prosecutor

committed misconduct during closing argument by commenting on his right to silence, (3)

defense counsel was ineffective for failing to object to the prosecutor’s improper comments on

his right to silence, and (4) defense counsel was ineffective by indicating that he would refuse to

ask Little any questions if Little exercised his constitutional right to testify.

        We hold that the State presented sufficient evidence in support of Little’s conviction and

that the prosecutor did not commit misconduct during closing argument. We further hold,

however, that Little has established that his defense counsel performed deficiently by preventing

Little from exercising his constitutional right to testify, but that the record is not sufficient to
No. 45942-6-II


determine whether such deficient performance prejudiced Little. Accordingly, pursuant to State

v. Robinson, 138 Wn.2d 753, 982 P.2d 590 (1999), we remand for an evidentiary hearing at

which the trial court must determine whether defense counsel’s deficient performance prejudiced

Little.

                                               FACTS

          In 2008, Bremerton Police Sergeant William Endicott contacted Little at Little’s

residence in response to a 911 call. During this contact, Little became “extremely upset” with

Endicott. Verbatim Report of Proceedings (VRP) at 15. Little also became upset with Endicott

when Endicott and several other officers contacted him in 2009. Following those contacts,

Endicott would occasionally see Little walking at a ferry terminal but did not interact with him.

          On July 1, 2013, Endicott went to a Safeway grocery store to purchase a lottery ticket.

Endicott stopped at the store on his way to work and was wearing his civilian clothing. While in

line to purchase a lottery ticket, Endicott heard someone behind him say, “It is you.” VRP (Dec.

11, 2013) at 25. Endicott turned around, recognized that the person speaking was Little, and

said, “How you doing, Mr. Little?” VRP (Dec. 11, 2013) at 26.

          Little responded, “You’re not so tough without your gun and your badge.” VRP (Dec.

11, 2013) at 30. Because Endicott had not interacted with Little for several years, he believed

that Little was mistaking him for someone else and asked Little, “Are you sure you know who I

am?” VRP (Dec. 11, 2013) at 30. Little replied, “You’re [expletive] Endicott, and you’re not so

tough without a gun and a badge.” VRP (Dec. 11, 2013) at 30-31. Little challenged Endicott to

a fight, “got right in [Endicott’s] face,” and told Endicott that “[h]e’d find [him] one day and

he’d beat [Endicott’s] ass.” VRP (Dec. 11, 2013) at 33-34. Endicott told Little that he was

going to call the police, to which Little responded, “You ever try to arrest me again, and I’ll



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No. 45942-6-II


[expletive] you up.” VRP (Dec. 11, 2013) at 36. Endicott left the store and called the police.

Based on this incident, the State charged Little with felony harassment of a criminal justice

participant.

       At a September 17, 2013 omnibus hearing, Little requested the trial court to appoint him

new counsel based on a disagreement with defense counsel about Little’s desire to testify at trial.

In support, Little stated, “I want to take the stand. I want to speak the truth. [Defense counsel]

has been disagreeable with that. So I got a problem with proceeding on right now.” VRP (Sep.

17, 2013) at 4. When the trial court asked defense counsel if he believed he could continue

representing Little, defense counsel stated, “I have nothing to add, Your Honor.” VRP (Sep. 17,

2013) at 5. The trial court denied Little’s request for the appointment of new counsel, noting that

the trial was still over a month away.

       At trial the State called one witness, Endicott, who testified consistently with the facts as

stated above. Additionally, Endicott testified that he took Little’s threats seriously. The State

also presented security video footage showing the interaction between Little and Endicott at the

Safeway store.

       Little called one witness, Safeway employee Cali Mandak. Mandak testified that she was

present during the interaction between Endicott and Little. Mandak stated that it appeared to her

that Endicott and Little were engaged in a casual conversation that did not appear to be

threatening. On cross-examination Mandak testified that, after Endicott left the store, Little told

her, “People in law enforcement hide behind their badges” and that “[t]hey get away with

things.” VRP (Dec. 11, 2013) at 66. Mandak further testified that Little told her that he would

like to get in a fight with the law enforcement officer, but only if the officer did not have his

badge or gun. Following Mandak’s testimony, the trial court excused the jury for a recess, and



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No. 45942-6-II


defense counsel stated that he intended to rest his case when the jury returned to the courtroom.

After defense counsel announced his intention to rest his case, the following exchange occurred:

                [Little]: Your Honor, I don’t know why my counsel—even if I took the
        stand, he says he won’t ask me any questions, so I guess I won’t take the stand.
                [Trial court]: [Defense counsel], do you need more time with Mr. Little?
                [Little]: It’s not going to change anything, sir.
                [Trial court]: Okay. I’m asking [defense counsel].
                [Little]: I’m sorry.
                [Defense counsel]: We have discussed this at length, Your Honor.
        ....
                [Defense counsel]: Well, the conflict here is this: He has the right to testify,
        but I have a—the tactical decision of what questions to ask him, and he wants to
        get into issues that I believe are either irrelevant or harmful to the theory of the
        case.

VRP (Dec. 11, 2013) at 68-69.

        Following this exchange, and without further addressing Little’s concern regarding his

desire to testify, the trial court called the jury back into the courtroom. The defense and the State

then rested their cases, and the trial court again excused the jury. While counsel and the trial

court discussed jury instructions, Little again interjected to inform the trial court of his desire to

testify, and the following exchange took place:

                 [Little]: Your Honor, I want to exercise my right to testify. Whether my
        attorney doesn’t want to question me or not, I’m willing to take on what the
        prosecutor says.
                 After hearing what is here, and all this is out there, at least I need to be able
        to look the jury in the eye . . . and say this is my side. I did not approach Sergeant
        Endicott like it’s all been led on to believe. Sergeant Endicott spoke to me first. I
        did nothing wrong in this case. I just told the man that you got no business talking
        to me. You’re the reason I moved out of the city limits. And I—I don’t approve
        of how the defense has handled this so far. Everything is running around. No. At
        least at this point after lunch and listening to these jury instructions and whatnot, I
        would like to exercise my right and testify.
                 [Trial court]: [Defense counsel], do you want to respond to those
        comments of your client in any way?
                 [Defense counsel]: Your Honor, I would move to reopen the defense case
        in chief.
        ....



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No. 45942-6-II


                [State]: Well, Your Honor, we went over this at some length. The defense
       rested. I released what is a potential rebuttal witness at this point. I guess before
       we make a decision—I’m not sure what the legal standard is for asking to reopen a
       case at this point. There’s—
                [Defense counsel]: The standard is abuse of discretion.
       ....
                [Trial court]: Based on the record before me, [defense counsel], I am going
       to deny your motion to reopen the case. I believe there has been an ample
       opportunity for you and your client to converse about whether or not he’s going to
       testify.
                Mr. Little your—
                [Little]: Your Honor, when I—
                [Trial court]: Mr. Little, please don’t interrupt me. Please don’t interrupt
       me, Mr. Little.
                You’ve indicated a desire to testify at this point. You’ve made an objection
       to the strategy of counsel. At this point I’m satisfied that the matter—both parties
       have rested, and at this point I’m satisfied that the case should not be reopened.
       You have had an ample opportunity to discuss this issue with counsel, and so I’m
       going to deny the motion to reopen by [defense counsel].
                [Little]: At least for the record, I continue to try, but he says, “No, I will
       not ask you a question. I don’t want you on the stand.” And I’ve always wanted
       to be on the stand.
                [Trial court]: Okay.

VRP (Dec. 11, 2013) at 93-95. Before calling the jury back into the courtroom, the trial court

made oral findings on the record, stating:

               I want to make a record before we proceed further and bring the jury in for
       instructions and closing.
               Mr. Little did indicate an earnest desire to testify in this matter this
       afternoon and requested that I permit the parties to reopen the case, specifically the
       defense to reopen their case. I am making a couple of findings:
               One, the two witnesses that previously testified in this case, Ms. Mandak
       and Sergeant Endicott, were under subpoena. They were released upon the parties
       resting this morning and are no longer under the authority of the court or under
       subpoena powers; and therefore, I do find that there is a prejudice to the prosecution
       by reopening the case.
               [Defense counsel] also articulated this morning, for strategic reasons he
       would not be asking his client any questions should his client take the stand, and
       articulated that on the record as a matter of strategy.
               Furthermore, we broke at 11:30. Mr. Little’s request was [at] approximately
       1:45. Over two hours had elapsed between the time of those discussions and when
       Mr. Little had asked the Court to reopen the case. So I’m making those findings.

VRP (Dec. 11, 2013) at 99-100.

                                                 5
No. 45942-6-II


       During closing argument, the State argued:

               [State]: I don’t know if Matthew Little feels justified. He didn’t tell us—
               [Defense counsel]: Objection.
               [State]: —in his statement.
               [Trial court]: Sustained.
               [State]: He didn’t tell us in his statement on the 1st of July 2013 when he
       was talking to Cali Mandak and when he was talking to Sergeant Endicott precisely
       why he was so angry. He didn’t explain to either one of them, “This is the very
       particular reason why my anger is so high.” But the point is, regardless of what it
       was that happened back in 2008 and 2009 that made his so angry, of all the things
       that he was entitled to do, he was not entitled to walk up to the detective and to
       threaten to beat his ass. He crossed the line.

VRP (Dec. 11, 2013) at 113-14. The jury returned a verdict finding Little guilty of felony

harassment of a criminal justice participant.

       After the jury returned its verdict, Little filed a pro se motion requesting in part to

proceed with private counsel, or in the alternative, to proceed pro se, and for an evidentiary

hearing on whether his constitutional right to testify had been violated by defense counsel’s

conduct.1 The trial court held a hearing to address Little’s motion on January 3, 2014. At the

January 3 hearing, defense counsel stated:

                If I were substitute counsel, after talking with Mr. Little and myself, I think
       that I would want to have me testify.
                And I can tell the Court that what I’m going—I would testify to is that Mr.
       Little and I had a disagreement from the beginning about trial strategy, and that I
       didn’t have any questions to ask Mr. Little on the stand that were going to further
       the trial strategy that I was pursuing. I don’t know if that’s error or not. And, quite
       frankly, at the—at the trial level, I’m not sure it makes that big of a difference. But
       at this point, I think that the appellate record is less than complete. And whether
       it’s error or not I think is going to be determined by courts higher than this, but I
       would like Mr. Little to have a chance to have a complete record when he gets up
       there.




1
 Little’s pro se motion also requested a continuance of his sentencing hearing and for the trial
court to set aside his conviction.
                                                  6
No. 45942-6-II


VRP (Jan. 3, 2014) at 7. The trial court granted Little’s motion for the substitution of counsel,

but deferred ruling on his motion for an evidentiary hearing.

        After the trial court appointed substitute counsel, that counsel moved for a new trial,

asserting that Little’s prior defense counsel rendered ineffective assistance by preventing Little

from testifying. At the hearing on January 24 addressing the motion for a new trial,2 substitute

counsel argued that Little’s prior defense counsel coerced him into not testifying by indicating he

would not ask Little any questions and, thus, Little’s waiver of the right to testify was

involuntary. The trial court denied the motion for a new trial, concluding that Little failed to

meet either prong of the ineffective assistance of counsel test under Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, with regard to the

deficient performance prong, the trial court stated:

        There is no evidence of force or coercion by trial counsel or the Court preventing
        the defendant from testifying. The defendant was informed that his lawyer would
        not ask him any questions, but the defendant made the choice, after knowing he had
        a right to testify, he could nevertheless take the stand and testify.

VRP (March 3, 2014) at 7. Regarding the prejudice prong, the trial court stated that Little had

failed to proffer any evidence of what his testimony would have been and, thus, he could not

establish a reasonable probability that the jury’s verdict would have been different had he

testified. Little appeals.




2
 Although Little’s appellate brief characterizes this proceeding as an evidentiary hearing, neither
party presented evidence at the hearing, and it is unclear from the record whether the parties
were permitted to present evidence at the hearing.
                                                  7
No. 45942-6-II


                                             ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Little first contends that the State failed to present sufficient evidence in support of his

conviction for harassment of a criminal justice participant. Specifically, Little contends that the

State failed to prove that (1) he made a “true threat” and (2) Endicott reasonably feared he would

carry out his threat. Br. of Appellant at 26. We disagree.

       Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in the light most favorable to the State, could find the elements of the charged crime

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).

We interpret all reasonable inferences in the State’s favor. State v. Hosier, 157 Wn.2d 1, 8, 133

P.3d 936 (2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151

Wn.2d 179, 201, 86 P.3d 139 (2004). Credibility determinations are for the trier of fact and are

not subject to review. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006).

       To convict Little of harassment of a criminal justice participant as charged here, the State

had to prove beyond a reasonable doubt that Little (1) without lawful authority (2) knowingly

threatened to cause bodily harm immediately or in the future (3) to a criminal justice participant

(4) because of actions taken or decisions made by the criminal justice participant while

performing official duties, and that Little (5) by such words or conduct placed the criminal

justice participant in reasonable fear that the threat would be carried out. RCW

9A.46.020(1)(a)(i), (2)(b)(iv). RCW 9A.46.020 criminalizes only “true threats.” State v.

Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004). “A ‘true threat’ is ‘a statement made in a

context or under such circumstances wherein a reasonable person would foresee that the

statement would be interpreted . . . as a serious expression of intention to inflict bodily harm . . .’



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No. 45942-6-II


of another person.” Kilburn, 151 Wn.2d at 43 (alteration in original) (internal quotation marks

omitted) (quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)).

       “A true threat is a serious threat, not one said in jest, idle talk, or political argument.”

Kilburn, 151 Wn.2d at 43. “Whether a statement is a true threat or a joke is determined in light

of the entire context, and the relevant question is whether a reasonable person in the defendant’s

place would foresee that in context the listener would interpret the statement as a serious threat

or a joke.” Kilburn, 151 Wn.2d at 46. Thus, “whether a true threat has been made is determined

under an objective standard that focuses on the speaker.” Kilburn, 151 Wn.2d at 44. In light of

these considerations, RCW 9A.46.020 “does not require that the State prove that the speaker

intended to actually carry out the threat.” Kilburn, 151 Wn.2d at 48.

       Here, the State presented evidence that Little approached Endicott and, without

provocation, told Endicott, “You’re not so tough without your gun and your badge,” then got in

Endicott’s face, challenged him to a fight, and threatened to “beat [his] ass” and “fuck [him] up”

at some point in the future. RP (Dec. 11, 2013) at 30-34, 36. Endicott testified that when Little

made these threats, Little’s manner in which he said them did not “appear to be humorous” and

that he took Little’s threats seriously. VRP (Dec. 11, 2013) at 31, 36. The State also presented

evidence that Endicott and Little did not have a personal relationship with each other and that

previous professional encounters between Little and Endicott in 2008 and 2009 left Little

“extremely upset” with Endicott. VRP (Dec. 11, 2013) at 15. Taken together and viewed in a

light most favorable to the State, this evidence was sufficient for a jury to find that a reasonable

criminal justice participant in Endicott’s position would view Little’s threats as serious, and not

simply made in jest. Accordingly, we hold that the State presented sufficient evidence from




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No. 45942-6-II


which a jury could find that Little expressed a “true threat” and that Endicott’s fear that Little

would carry out his threats was reasonable.

                                  II. PROSECUTORIAL MISCONDUCT

          Next, Little contends that the prosecutor committed misconduct during closing argument

by commenting on Little’s Fifth Amendment and article I, section 9 right to silence. U.S.

CONST. amend. V; WASH. CONST. art. I, § 9. Again, we disagree.

          A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). Prejudice exists

when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). When a defendant fails to object to the

prosecutor’s improper statements at trial, such failure constitutes a waiver of prosecutorial

misconduct claims unless the prosecutor’s statements were “so flagrant and ill-intentioned” that

it caused an “enduring and resulting prejudice” incurable by a jury instruction. State v. Stenson,

132 Wn.2d 668, 719, 940 P.2d 1239 (1997). In determining whether a prosecutor’s misconduct

warrants reversal, we consider its prejudicial nature and cumulative effect. State v. Boehning,

127 Wn. App. 511, 518, 111 P.3d 899 (2005). We review a prosecutor’s remarks during closing

argument in the context of the total argument, the issues in the case, the evidence addressed in

the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432

(2003).

          The Fifth Amendment of the United States Constitution and article I, section 9 of the

Washington Constitution “guarantee a criminal defendant the right to be free from self-

incrimination, including the right to silence.” State v. Knapp, 148 Wn. App. 414, 420, 199 P.3d

505 (2009). Due process prohibits the State from commenting on a criminal defendant’s post-



                                                  10
No. 45942-6-II


arrest silence. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996) (citing Brecht v.

Abrahamson, 507 U.S. 619, 628, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Doyle v. Ohio, 426

U.S. 610, 617, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)). Additionally, “a defendant’s pre-arrest

silence, in answer to the inquiries of a police officer, may not be used by the State in its case in

chief as substantive evidence of defendant’s guilt.” State v. Lewis, 130 Wn.2d 700, 705, 927

P.2d 235 (1996). Further, it is misconduct for the State to argue to the jury that the defendant’s

pre-arrest silence “was an admission of guilt.” Lewis, 130 Wn.2d at 707.

       An impermissible comment on silence requires more than merely referencing the silence.

State v. Slone, 133 Wn. App. 120, 127, 134 P.3d 1217 (2006). We must consider “‘whether the

[State] manifestly intended the remarks to be a comment on that right.’” State v. Burke, 163

Wn.2d 204, 216, 181 P.3d 1 (2008) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10

(1991)).

       Here, the prosecutor argued at closing, “I don’t know if Matthew Little feels justified. He

didn’t tell us—.” VRP (Dec. 11, 2013) at 113. Defense counsel objected to this partial

statement and the trial court sustained the objection. Absent context, it does appear that the State

may have begun to comment on Little’s constitutionally protected right of silence. However,

following the trial court’s ruling sustaining defense counsel’s objection, the State continued:

               He didn’t tell us in his statement on the 1st of July 2013 when he was talking
       to Cali Mandak and when he was talking to Sergeant Endicott precisely why he was
       so angry. He didn’t explain to either one of them, “This is the very particular reason
       why my anger is so high.” But the point is, regardless of what it was that happened
       back in 2008 and 2009 that made him so angry, of all the things that he was entitled
       to do, he was not entitled to walk up to the detective and to threaten to beat his ass.
       He crossed the line.

RP (Dec. 11, 2013) at 114. Defense counsel did not again object.




                                                  11
No. 45942-6-II


       Viewing the prosecutor’s argument in context, it is clear that the prosecutor did not

comment on Little’s constitutional right to silence. Rather, the prosecutor’s argument merely

referred to Little’s threatening statements to Endicott during their encounter at the Safeway store

and illustrate how, during those statements, Little did not reveal why he was then presently angry

with Endicott. The prosecutor’s argument suggested that, because Little did not inform Endicott

why he was then presently angry with him, the jury could infer that Little’s anger and motive for

uttering his threats was related to his previous encounters with Endicott in 2008 and 2009, while

Endicott was performing official police duties. This, in turn, suggested that Little’s threats were

in response to Endicott’s actions as a criminal justice participant performing official duties, a

necessary element that the State had to prove to secure a conviction. See RCW

9A.46.020(2)(b)(iv).

       Because Little fails to show that the State had commented on his constitutional right to

silence, he cannot demonstrate any improper conduct on the part of the prosecutor, let alone that

the prosecutor’s conduct was flagrant and ill-intentioned with regard to the portion of the closing

argument to which he did not object. Additionally, because Little fails to show that the

prosecutor committed misconduct, he cannot demonstrate that his counsel was ineffective for

failing to object to the challenged portion of the prosecutor’s closing argument.

                   III. RIGHT TO TESTIFY/INEFFECTIVE ASSISTANCE OF COUNSEL

       Finally, Little contends that his defense counsel violated his constitutional right to testify

by indicating that he would not ask Little any questions if Little chose to exercise his right.

Pursuant to Robinson, 138 Wn.2d 753, we analyze this claim under the ineffective assistance of

counsel test and hold that defense counsel performed deficiently by preventing Little from




                                                 12
No. 45942-6-II


testifying at trial. We remand for an evidentiary hearing to determine whether defense counsel’s

deficient performance prejudiced Little.

       Under our federal and state constitutions, criminal defendants have a fundamental right to

testify, which right may not be abrogated by defense counsel. Robinson, 138 Wn.2d at 758.

“The defendant, not trial counsel, has the authority to decide whether or not to testify.” State v.

Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Defense counsel violates a defendant’s

right to testify if defense counsel’s conduct “actually prevented [the defendant] from testifying.”

Robinson, 138 Wn.2d at 762. We address claims that defense counsel violated a defendant’s

right to testify under the ineffective assistance of counsel test, which test requires the defendant

to show that defense counsel performed deficiently and that such deficient performance

prejudiced the defendant. Robinson, 138 Wn.2d at 767. As applied in this context, “a defendant

who is able to prove that his attorney actually prevented him from testifying” meets the

deficiency prong of the ineffective assistance of counsel test. Robinson, 138 Wn.2d at 766-67.

A defendant may satisfy the prejudice prong if the defendant proves that his or her “testimony

would have a ‘reasonable probability’ of affecting [sic] a different outcome.” Robinson, 138

Wn.2d at 769. If the defendant satisfies both prongs, he or she will be entitled to a new trial.

Robinson, 138 Wn.2d at 770.

       Our Supreme Court has held that a defendant may demonstrate that defense counsel

actually prevented him or her from testifying by showing that defense counsel used coercion to

prevent the defendant from testifying. Robinson, 138 Wn.2d at 762. Examples of such coercion

include telling the defendant that he or she is legally forbidden from testifying, threatening to

withdraw from representation if the defendant elects to testify, or misinforming the defendant

about the consequences of testifying. Robinson, 138 Wn.2d at 762. Additionally, even absent



                                                 13
No. 45942-6-II


coercion, defense counsel can prevent a defendant from testifying by refusing to call the

defendant as a witness when counsel knows that the defendant wants to testify. Robinson, 138

Wn.2d at 762-63. “If a defendant is able to prove by a preponderance of the evidence that his

attorney actually prevented him from testifying, he will have established that the waiver of his

constitutional right to testify was not knowing and voluntary.” Robinson, 138 Wn.2d at 764-65.

A.     Deficient Performance

       Although it appears that no court has addressed the question of whether defense counsel’s

refusal to ask the defendant any questions equates with a denial of the defendant’s right to

testify, the State admits that it cannot “distinguish[] between a refusal to ask any questions and

an outright denial of the right to testify.” Br. of Resp’t at 17 (alteration in original). We, too,

cannot distinguish between a refusal to ask a defendant any questions and an outright denial of

the right to testify. We conclude that, in essence, such conduct is tantamount to a refusal to call

the defendant as a witness.

       In Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961), the United

States Supreme Court addressed a state statute allowing a criminal defendant to give unsworn

testimony, but preventing defense counsel from asking the defendant any questions. Although

not addressing the precise issue before us, the Ferguson court highlighted the fundamental role

defense counsel’s questioning of the defendant plays in giving life to the defendant’s

constitutional right to testify, stating that absent questioning from defense counsel, a defendant

“‘has been set adrift in an uncharted sea with nothing to guide him, with the result that his

statement in most cases either does him no good or is positively hurtful.’” 365 U.S. at 593

(quoting 7 Ga.B.J. 432, 433 (1945)). The Ferguson Court further stated:

       The tensions of a trial for an accused with life or liberty at stake might alone render
       him utterly unfit to give his explanation properly and completely. Left without the

                                                  14
No. 45942-6-II


       “guiding hand of counsel,” Powell v. State of Alabama, [287 U.S. 45, 69, 53 S. Ct.
       55, 77 L. Ed 158 (1932)], he may fail properly to introduce, or to introduce at all,
       what may be a perfect defense. “. . . though he be not guilty, he faces the danger
       of conviction because he does not know how to establish his innocence.”

365 U.S. at 594-95 (alteration in original).

       Although the Ferguson Court did not address whether defense counsel’s decision to

refrain from asking questions of a defendant denies the defendant’s constitutional right to testify,

the reasoning in Ferguson informs our decision that such conduct would be tantamount to a

refusal to call the defendant as a witness. Accordingly, following Robinson and Ferguson,

where defense counsel knows the defendant wishes to testify, we hold that defense counsel’s

refusal to ask the defendant any questions violates the defendant’s constitutional right to testify.

       The State contends that, even assuming that a refusal to ask a defendant questions

amounts to a denial of the right to testify, the record is unclear as to whether Little’s defense

counsel actually indicated such a refusal. We disagree. Here, before defense counsel rested its

case, Little informed the trial court that he wanted to testify but that his defense counsel

informed him that he would refuse to ask Little any questions if he testified. When addressing

the trial court, defense counsel did not refute Little’s assertion, instead indicating that he was

having a conflict with Little over trial tactics. The trial court later orally found on the record that

“for strategic reasons [defense counsel] would not be asking his client any questions should his

client take the stand.” VRP (Dec. 11, 2013) at 99. Defense counsel did not refute this finding.

Finally, in addressing Little’s post-trial pro se motion, defense counsel stated that he “didn’t have

any questions to ask Mr. Little on the stand that were going to further the trial strategy that

[defense counsel] was pursuing.” RP (Jan. 3, 2014) at 7.

       We conclude that the above adequately establishes that defense counsel refused to ask

Little any questions if Little elected to testify at trial. Robinson, 138 Wn.2d at 764. Because

                                                  15
No. 45942-6-II


Little repeatedly expressed his unequivocal desire to testify in his defense, such conduct by

defense counsel violated his constitutional right to testify. Robinson, 138 Wn.2d at 762-63. We

thus hold that Little has satisfied his burden of showing his defense counsel performed

deficiently.

B.     Resulting Prejudice

       To be entitled to a new trial, Little must also establish that his defense counsel’s deficient

performance in preventing him from testifying prejudiced him; prejudice is not presumed.

Robinson, 138 Wn.2d at 769-70. To establish prejudice, Little must demonstrate “that his

testimony would have a ‘reasonable probability’ of affecting a different outcome.” Robinson,

138 Wn.2d at 769-70 (quoting State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)).

Here, the record does not establish what Little’s testimony would have been had defense counsel

not prevented him from testifying. Although the trial court held a hearing at which it found that

Little failed to proffer evidence of what he “could have testified to [that] would [have] raise[d] a

reasonable probability that the verdict would have been different,” the parties did not present

evidence at this hearing, and it is unclear whether the parties were permitted to present evidence

at the hearing. RP (3/3/14) at 4. Accordingly, we remand for an evidentiary hearing comporting

with Robinson to determine whether Little was prejudiced by being prevented from testifying.

At this hearing, Little may make an offer of proof as to the substance of his proposed testimony.




                                                 16
No. 45942-6-II


138 Wn.2d at 567-70.

        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 in accordance with RCW

2.06.040, it is so ordered.




                                                      BJORGEN, J.
 We concur:




 JOHANSON, C.J.




 MELNICK, J.




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