Jan. 19, 2010 – A new trial is not an automatic remedy for the court’s failure to question a criminal defendant as to whether the decision not to testify is knowing, intelligent, and voluntary.

In State v. Garcia, 2009AP516, the Wisconsin Court of Appeals noted that when the Wisconsin Supreme Court required an on-the-record colloquy to ensure a valid waiver of the constitutional right to testify, it did not specify a remedy for when one is not held in State v. Weed, 2003 WI 85.

The court of appeals determined that an appropriate remedy is an evidentiary hearing at which the state has the burden of showing the defendant’s waiver was knowing and voluntary by clear and convincing evidence. If the state fails to meet this burden, then the defendant is entitled to a new trial.

Postconviction relief denied after an evidentiary hearing

Tom Garcia had a two-day trial on charges of battery, substantial battery, criminal trespass, criminal damage to property, and obstructing an officer. Following the state’s case-in-chief, the defense called two expert witnesses to testify regarding DNA analysis. At the close of the second expert witness’ testimony, defense counsel sought a recess to confer with Garcia.

Following the recess, the defense informed the court that it would rest without the testimony of Garcia. The court did not engage in a colloquy to determine the quality of Garcia’s decision to rest. The jury found Garcia guilty of substantial battery and criminal trespass.

In a postconviction motion, Garcia asserted he was entitled to a new trial because of the court’s failure to hold the colloquy. The court agreed that the colloquy should have been held, but it was not. However, after hearing testimony from Garcia and both of his trial attorneys in connection with this motion, the court concluded that under Weed, it could find Garcia had validly waived his right to testify. Garcia appealed.

Garcia’s decision not to testify

In a Jan. 13 opinion by Judge Harry G. Snyder, the court of appeals accepted the lower court’s three findings of fact under a deferential standard of review.

“First, it found that Garcia had originally planned to testify, but later changed his mind,” the court of appeals stated. “It also found that Garcia decided not to testify after consulting with his attorneys. Finally, it found that Garcia’s attorneys had ‘discussed with [Garcia] his rights and whether or not he would actually testify at trial’ and that Garcia ‘had thought about it, had all of the factors, pros and cons discussed with him.”

But the court of appeals reserved the right to independently review application of constitutional standards to these facts. The court then rejected Garcia’s argument that anything less than automatically granting a new trial weakens protections of the constitutional right to testify. Instead, the court adopted an evidentiary hearing procedure comparable to that used when a judge fails to question the defendant who seeks to waive the right to counsel or enters a guilty plea.

Applying that standard to this case, the court of appeals agreed that the state demonstrated by clear and convincing evidence that Garcia knowingly, intelligently, and voluntarily waived his right to testify. The court noted that at the evidentiary hearing for his postconviction motion, Garcia conceded that his lead attorney informed him of his right to testify and that there had been a lot of discussion about whether he should. Similarly, Garcia’s two attorneys had testified to the particular advantages and disadvantages Garcia weighed before deciding not to testify. For example, Garcia might appear likable to the jury, but taking the stand would also allow introduction of Garcia’s criminal record and certain other acts evidence.

Citing Weed, the court said that the colloquy between the court and the defendant should be “straightforward and consist of two inquiries: (1) Is the defendant aware of his or her right to testify and (2) Has the defendant discussed this right with counsel.”

“Having reviewed the trial transcript along with the postconviction evidentiary hearing transcript, we are convinced that Garcia’s waiver of the right to testify was knowing, intelligent and voluntary,” the court concluded.