      IN THE SUPREME COURT OF TENNESSEE

                       AT KNOXVILLE
                                                                    FILED
NAPOLEON MOMON,                             )                       November 15, 1999
                                            )
       Appellant,                           )                      Cecil Crowson, Jr.
                                            )                     Appellate Court Clerk
v.                                          )       No.
E1996-00007-SC-R11-PC
                                            )
STATE OF TENNESSEE,                         )
                                            )
       Appellee.                            )


                       CONCURRING / DISSENTING OPINION


       I concur with the conclusion of the Court that the right to testify is fundamental,

and I agree with the procedural protections that the Court now requires to ensure a
valid waiver of that right. However, because I am unable to reconcile the majority’s
characterization of the right to testify as being fundamental and personal to the
defendant with the majority’s conclusion that the right is subject to harmless error
analysis, I dissent.



       The majority has researched and traced the right of a criminal defendant to

speak in his or her own behalf at trial with thoughtfulness and careful attention. As the

majority recognizes, this right has been recognized in Tennessee in one form or

another since the very beginning of statehood, and as far back as 1796, the common

law prohibition on a defendant’s right to speak at trial has found no sanctuary in our

criminal jurisprudence. The right to testify has also achieved fundamental status

under federal law, and the majority quotes Rock v. Arkansas, 483 U.S. 44, 51 (1987),

as stating that the right to testify “is one of the rights that are essential to due process

of law in a fair adversary process.” The meticulous and painstaking research of both

state and federal law undertaken by the majority exposes the truth of these
propositions.



       To conclude its thorough analysis of the fundamental nature of the right to
testify, the Court correctly states that “it is beyond serious dispute that the right [of a


                                                1
criminal defendant to testify] has achieved fundamental status under the state and

federal constitutions.” It is with some wonder, then, that the majority holds that the

right to testify is not so fundamental as to defy harmless error analysis.


       At one time, Tennessee courts regularly held that violations of constitutional

rights could never constitute harmless error. See Briggs v. State, 207 Tenn. 253, 338

S.W.2d 265 (1960). Following Briggs, however, the United States Supreme Court in

Chapman v. California, 386 U.S. 18, 24 (1967), held that most constitutional errors

were subject to harmless error analysis so long as the error was found to be harmless
beyond a reasonable doubt. Indeed, as this Court has declared, “in modern

jurisprudence, there is a presumption that harmless error should be applied.” State v.

Williams, 977 S.W.2d 101, 105 (Tenn. 1998).


       This presumption of harmless error analysis has never been conclusive,

however, and some constitutional rights are so fundamental that their violation is

never subject to harmless error analysis. The majority today adopts the federal

harmless error analysis formulated by Chief Justice Rehnquist in Arizona v.

Fulminante, 499 U.S. 279 (1991), to hold that the right to testify is subject to harmless

error. In Fulminante, the Court fashioned a curious dichotomy between those errors

“occurri[ing] during the presentation of the case to the jury,” id. at 307, and those
“affecting the framework within which the trial proceeds rather than simply an error in

the trial process itself.” Id. at 310. Only the rights falling into the latter category are

beyond the reach of harmless error analysis. Among the rights listed by the court
whose infringement constitutes a structural defect is the right to self-representation at

trial. Id.; see also McKaskle v. Wiggins, 465 U.S. 168, 177 (1984) With its citation to

McKaskle v. Wiggins, the Supreme Court reaffirmed that “the right to speak for oneself
entails more than the opportunity to add one’s voice to the cacophony of others.”

McKaskle, 465 U.S. at 177. The McKaskle Court acknowledged that a denial of the

right to speak for one’s self implicates concerns beyond the mere presentation of

evidence to a jury; the ability to exercise of the right of self-representation “affirm[s] the




                                              2
dignity and autonomy of the accused and [allows] the presentation of what may, at

least occasionally, be the accused’s best possible defense.” Id.



         I believe this same rationale is even more true with respect to a defendant’s

right to testify. The right to testify is, after all, an integral part of the defendant’s right

to conduct a defense, and like the right of self representation, the right to testify also
affirms the dignity and autonomy of the accused. In fact, as the United States

Supreme Court has declared, “[e]ven more fundamental to a personal defense than

the right of self-representation . . . is an accused’s right to present his own version of
events in his own words. A defendant’s opportunity to conduct his own defense by

calling witnesses is incomplete if he may not present himself as a witness.” Rock, 483

U.S. at 52 (emphasis added).


         A careful review of the majority’s harmless error analysis reveals the

conspicuous absence of any adequate answer to most essential question in this

debate: If denial of the right of self-representation is not subject to harmless error

analysis, how can this Court then insist that denial of the more fundamental right of a

defendant to testify is somehow less worthy of protection? It is bewildering that the

majority would devote several pages to establishing the fundamental nature of the

right to testify only to later deny its fundamental nature when asked to provide for a
rule of automatic reversal. 1 Until the majority is able to provide an answer to why




    1
        The m ajority says tha t I have fundamentally misperceived the nature of the harmless error doctrine
as constituting a protection of constitutional rights. To be sure, I do not believe that the harmless error
doc trine p rovid es an y genu ine pr otec tion fo r the r ight to testify.
          In fact, application of the harmless error doc trine allows the erosion of the right to testify because
it permits courts to overlook or ignore deprivations of the right under certain circumstances. Under the
harmless error doctrine, the significance of the right to testify depends entirely upon the amount of prejudice
suff ered by the defe nda nt. In its mo st ba sic s ens e, no preju dice equa ls no r ight to testify.
          A rule of autom atic re vers al, ho weve r, affo rds r eal pr otec tion fo r the r ight to testify b eca use it
ensures a new trial for a defe nda nt wh o has been depr ived th e exe rcise of this fundamental right. Therefore,
when I speak of the majority affording less protection for the right to testify by applying the doctrine of
harmless error, I m ean that th e ma jority has chosen to provide less protection for the denial of the right than
it wou ld hav e if the ma jority ha d cho sen to pro vide f or au tom atic re vers al.




                                                           3
deprivation of the more fundamental right is not deserving of automatic reversal—and

I suspect they can not—I must respectfully dissent.2



        In support of its view that denial of the right to testify is subject to harmless

error analysis, the majority relies in part on case law from other jurisdictions. As the

majority states, “The vast majority of jurisdictions which have considered this issue
have held that harmless error analysis applies when a defendant establishes a denial

of the right to testify under the Fifth Amendment or that the prejudice prong of

Strickland v. Washington, 466 U.S. 668 (1984)[,] must be established if the defendant

is to prove ineffective assistance of counsel . . . .” While I agree that such cases exist,

I question the propriety of the specific cases cited by the majority to support its

conclusion that a denial of the right to testify is subject to harmless error analysis
under Tennessee law.



        Of the nine cases cited by the majority opinion for the proposition that denial of

the right to testify is subject to harmless error analysis, six of these cases analyze the

issue following a Sixth Amendment ineffective assistance of counsel approach.3 The
jurisdictions adopting a Sixth Amendment approach generally believe that the

diligence of trial counsel is the best protection for the right to testify. Therefore,

according to this approach, it ineluctably follows that a claim of ineffective assistance
of counsel would be the proper remedy.



         In this case, however, the Court has refused to decide the Sixth Amendment
claim as originally presented by the parties. Instead, the majority has chosen to afford


   2
       I do not mean to imply that this court should somehow engage in the dubious enterprise of “ranking”
constitutional rights in order of importance. I mean only that the United States Supreme Court has stated
that the fundamen tal right of a criminal defendant to testify at trial is “[e]ven more fundamental” than the right
of self-repre sentation . See Rock, 483 U.S. at 52. This having be en said, I can see no reason why the
“[e]ve n m ore f und am enta l” right shou ld not be af ford ed th e pro tectio n of a utom atic re vers al.
    3
      See United States v. Tavares, 100 F.3d 995, 99 9 (D.C. C ir. 1996); Comm issioner of Correction v.
Rodriguez, 610 A.2d 631, 636 n.9 (Conn. 1992), overruled on procedural grounds, Simms v. W arden, 640
A.2d 601 (Conn . 1994); State v. Paulsen, 726 A.2d 902, 907 (N.H. 19 99); State v. Arguelles, 921 P.2d 439,
441 (Utah 19 96); State v. Flynn, 527 N.W .2d 343 (W is. Ct. App . 1994); State v. Robinson, 982 P.2d 590
(W ash. 19 99).




                                                        4
relief based upon the text of Article I, section 9 of the Tennessee Constitution and the

Fifth Amendment to the federal constitution. Further, the majority has adopted a

procedure by which the court—and not trial counsel—is required to ensure a valid
waiver of the right to testify. 4 By adopting such a procedure, the Court has rejected
the notion that trial counsel alone is in the best position to the protect the right to

testify. As such, I believe that reliance on Sixth Amendment cases is questionable at
best, and such authority should not be considered in concluding that the right to testify

is subject to harmless error under the Tennessee Constitution.5



            The three remaining cases cited by the majority for the proposition that a denial

of the right to testify is subject to harmless error analysis do follow a Fifth Amendment

approach.6 These cases primarily rely upon the approach articulated in Ortega v.

O’Leary, 843 F.2d 258 (7th Cir. 1988), 7 which essentially analyzes a denial of the right
to testify from the perspective of a denial of the right to present other witness

testimony. Fully in accord with Ortega, the majority proposes a multi-factored test to

determine the harmfulness of a denial of the right to testify. As evidenced by the four

enumerated factors, the majority apparently believes that the testimony of a defendant

is no more important than that of any other defense witness.8



    4
       Although the proced ure ado pted by the majo rity does ca ll for trial couns el to voir dire the defend ant,
the trial c ourt n ever thele ss is the fin al arb iter of whe ther a valid w aiver has b een ma de. W hen there is
evidence that a valid waiver has not been made, the trial cour t “is oblige d to q ues tion th e def end ant d irectly
to the exte nt nece ssary to en sure a va lid waiver.”
   5
      I wish to reiterate that I am in full agreement with the majority that a Sixth Amendment right to counsel
ana lysis is improper in right to testify cas es. Nev ertheless , I believe the m ajority’s reliance on Sixth
Amendment cases to suppo rt harm less erro r analysis un der either th e Ten nesse e Con stitution or the Fifth
Am endm ent is intellectu ally suspec t.
    6
     See Peo ple v. Johnson, 72 Cal. R ptr. 2d 805 , 820 (Ca l. Ct. App. 19 98); State v. Silva, 890 P.2d 702,
712 (Haw. Ct. App. 1995), overruled on other grounds, Tachibana v. State , 900 P.2d 1293 (Haw . 1995);
People v. Solomon, 560 N.W .2d 651, 6 54-56 (M ich. Ct. Ap p. 1996) .

    7
       These two cases relying on Ortega are State v. Silva and People v. Solomon . The California Court
of Appeals found harmless error in People v. Johnson without relying on Ortega. How ever , the a ttorn ey in
Johnson denied h is client the righ t to testify beca use he believed th at his client w as going to present perjured
testim ony. Because there is no fundamental right to present perjured testimony, the holding in Johnson
does not seem to support the majority’s conclusion that the right to testify generally is subject to harmless
error.
        8
       The fund am enta l mis con cep tion h ere is that th e def end ant is not m erely another witness for the
defense. “In fact, the most important witness for the defense in m any cr im inal cases is the defendant
himself.” Rock, 483 U.S. at 52.




                                                          5
         The majority states that in some cases, “the defendant’s testimony would have

no impact, or even a negative impact, on the result of trial.” The Court also states that
in other cases, “denial of the defendant’s right to testify may be devastating to the

defense. However, under such circumstances, a reviewing court “will simply conclude

that the error was not harmless beyond a reasonable doubt.” (emphasis added).


         With all due respect to the majority, I fail to see how in most cases a reviewing

court could conclude that a defendant’s omitted testimony is “devastating to the
defense.” The appellant’s own case is an excellent example of how the majority’s test

fails to properly account for the harmfulness of the error. For example, the appellant’s

testimony in the second trial would have been cumulative because his version of
events was already presented to the jury through his prior statements made to police

and those given in depositions. The State was able to present expert proof that the

shooting was not the result of a struggle because the shot was fired more than three

feet away, and the defendant’s testimony was not strictly needed since the defense

strategy was simply to put the State to its burden of proving the offense beyond a

reasonable doubt.9 Using this Court’s own test, most courts would probably consider

denial of the defendant’s right to testify in the second trial harmless beyond a

reasonable doubt.


          One of the criticisms of harmless error analysis generally is that appellate

courts are ill-equipped to judge the actual harm resulting from a denial of a
constitutional right. The appellant’s case is unique, though, because it affords a

reviewing court the opportunity to actually observe the harm by comparing the results

of two trials whose only substantial and material difference is the lack of the
appellant’s testimony. When the appellant testified in the first trial, he received an

acquittal on the charge of first degree murder, and the jury was unable to reach a

verdict on the lesser charge of second degree murder. However, when the appellant


   9
       In fac t, the d efen se did not o ffer a ny witn ess es at the s eco nd tria l.




                                                             6
did not testify at the second trial, the jury was able to reach a verdict. I do not discount

the reality that no two juries are ever the same, but one could certainly argue that

given the results of the first trial, the failure of the appellant to testify in the second trial
certainly lead to his conviction of second degree murder.



         If a reviewing court can conclude that denial of the right to testify in the second
trial was harmful in this case, it will no doubt only be because the court has the benefit

of a different result in a second trial. I suspect that in most cases, neither this Court

nor any other court will likely have the benefit of comparing the outcomes of two
different trials whose only substantial and material difference is the defendant’s failure

to testify. Without the benefit of the first trial, it would not strain logic to conclude that

denial of the appellant’s right to testify in the second trial was harmless beyond a
reasonable doubt. As such, the application of the Court’s multi-factor test may

amount to protection of a fundamental right only when the defendant has been

fortuitously tried twice and can demonstrate different outcomes.10 The application of
such a test amounts to no more protection than one could expect from a paper tiger,

and this fundamental right deserves the protection of automatic reversal.



         I profoundly disagree that a denial of the right to testify is merely a “trial error”

involving only the presentation of evidence to a jury. In so holding, this Court has
ignored that the evidentiary value of the defendant’s testimony is not the only concern

involved when examining the harm incurred by a denial of the right to testify. The right

to testify is part of the larger right of a defendant to present a defense, and it is often
the only opportunity that a defendant has to present his or her version of events to the

jury. 11 As has been said of the right to testify:


    10
        The majority says that I have over look ed th e fac t that a defe nda nt in a p ost-c onvic tion h earin g will
be able to offer what his testimony would have been. Such an approach would have offered this appellant
no relief, however, because his version of events was presented to the jury in the form of statements made
to police and statements made in a civil deposition. The jury at the second trial did not get the opportu nity
to judge firsthand the credibility of the defendant or to observe how his testimony would have withstood
cross-examination. Although we can never know for sure, I would be willing to risk a new trial o n the
prem ise th at the se fa ctors , am ong othe rs, co ntribu ted to the re sult in the fir st trial.
     11
          The importance of this opportunity can not be overe stimate d. “Spee ch is pow er: spee ch is to
persuade, to convert, to com pel. It is to bring another out of his bad sense into your good sens e.” See
Ralph W aldo Em erson, Lette rs an d So cial A ims (1876).




                                                          7
       [The right to testify] is embraced in the right of the defendant to meet and
       deny the accusation against him and to present evidence in his behalf,
       including himself as a witness. The decision whether defendant will testify
       is a choice between mere passivity at trial and active participation through
       which the defendant can inject his own acts, voice and personality into the
       process. Taking the stand is the defendant’s opportunity, if he wants it, to
       face his accusers and the jury, tell his story, submit to examination, and
       exercise such ability as he may have to persuade those who will make a
       decision that may vitally affect his life. And the witness box gives the
       defendant a forum to speak to a world larger than the courtroom.
       Considerations such as these make the right to testify fundamental to the
       fairness, the dignity and the vitality of the twentieth century judicial process.



See Wright v. Estelle, 572 F.2d 1071, 1081 (5th Cir. 1978) (Godbold, J., dissenting)

(citation omitted). As I have tried to show, the actual and inherent worth of a

defendant’s testimony consists of much more than its evidentiary value alone.


       Although I am concerned with the majority’s application of harmless error

analysis to a denial of the right to testify, I am also concerned that this Court needs to
develop a consistent approach to decide which fundamental rights defy harmless error

analysis. Today, the majority holds that denial of the right to testify is subject to

harmless error analysis because it constitutes a “trial error,” and therefore, the Court

seems to fully adopt the federal harmless error standard under Arizona v. Fulminante.

Previously, however, this Court has recognized rights that defy harmless error analysis
based upon express recognition in our constitution and statutes without regard to the

Fulminante distinction between “trial errors” and “structural defects.”



       In State v. Lowe, 811 S.W.2d 526, 527 (Tenn. 1991), we addressed the issue

of whether a denial of a defendant’s statutory right to a continuance after the State

files an untimely notice of its intent to seek an enhanced sentence “is absolute, or
rather is subject to harmless error analysis.” Although we had never previously stated

that denial of that right prejudices the judicial system as a whole, we nevertheless held

that harmless error analysis did not apply because “the right is absolute.” These

findings were made simply upon the plain language of a statute guaranteeing the right,
the language of the Rules of Criminal Procedure, and the Advisory Committee

comments to the Rules of Criminal Procedure. Similarly, in State v. Muse, 967




                                              8
S.W.2d 764, 768 (Tenn. 1998), we adopted a “defies harmless error analysis” with

respect to a defendant’s right to be present at jury selection. In Muse, our conclusion
was derived simply from our belief that the state constitution and statutes elevated this
right to fundamental status in Tennessee, incapable of harmless error analysis. See

967 S.W.2d at 766, 768.



       As the majority plainly concedes, the right of a defendant to testify at his or her

own trial is guaranteed not only by the state constitution, but also by statutes, prior

case law, and current practice. Even if a denial of the right to testify is generally held
to a harmless error analysis under the federal standard, prior precedent from this

Court all but compels a contrary finding according to state law. As the majority

recognizes with its citation to Rock v. Arkansas, the denial of the right to testify strikes

at the very heart of fairness in the system of criminal justice. It is incongruous,

therefore, to deny that such an error prejudices the system as a whole. I would hold

that a unilateral deprivation by defense counsel of the defendant’s right to testify can

not constitute harmless error under either the state or the federal constitutions.

Consequently, I respectfully dissent from that part of the majority opinion subjecting to

harmless error analysis the right of a criminal defendant to testify.



       I am authorized to state that Justice Birch joins in this concurring/dissenting
opinion.




                                                  ______________________________
                                                  WILLIAM M. BARKER, JUSTICE




                                             9
