IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED November 15, 1999 Cecil Crowson, Jr. NAPOLEON MOMON, ) FOR Appellate Court Clerk PUBLICATION ) Appellant, ) FILED: November 15, 1999 ) v. ) HAMILTON CRIMINAL ) STATE OF TENNESSEE, ) HON. STEPHEN M. BEVIL, ) JUDGE Appellee. ) ) No. E1996-00007-SC-R11-PC ) ) (Post Conviction)

For the Appellant: For the Appellee: Stephen M. Goldstein Paul G. Summers Chattanooga, Tennessee Attorney General & Reporter

Michael E. Moore Solicitor General

Daryl J. Brand Associate Solicitor General Nashville, Tennessee

William H. Cox, III District Attorney General 11th Judicial District

Rodney C. Strong Assistant District Attorney Chattanooga, Tennessee

OPINION

TRIAL COURT AND COURT OF CRIMINAL APPEALS REVERSED DROWOTA, J. CASE REMANDED TO TRIAL COURT. The appellant, Napoleon Momon, requested permission to appeal from a

decision of the Court of Criminal Appeals holding that he was not denied effective

assistance of counsel when his trial counsel failed to allow him to testify at his own trial. After careful consideration, we find it unnecessary to reach the issue of whether

the facts of this case give rise to a claim of ineffective assistance of counsel. Instead

we hold that a criminal defendant’s right to testify is a fundamental constitutional right guaranteed both by Article I, section 9 of the Tennessee Constitution and by the Fifth

and Fourteenth Amendments to the United States Constitution. As such, the right

must be personally waived by the criminal defendant. In all cases tried or retried hereafter, trial courts should adhere to the procedural guidelines set forth herein to

ensure that the defendant personally waives his or her right to testify. The appellant

in this case was denied his fundamental right to testify when trial counsel unilaterally waived the right. Although the harmless error doctrine may be applied to a violation of

the fundamental right to testify, the record on appeal before this Court has not been

sufficiently developed to permit a determination of whether or not the error in this case

is harmless beyond a reasonable doubt. Accordingly, we remand this case to the trial

court for a hearing at which the State will bear the burden of demonstrating that the error was harmless beyond a reasonable doubt. If, however, the State fails to meet

its burden, the trial court must vacate the appellant’s conviction.

BACKGROUND

The appellant, Napoleon Momon, was indicted for first degree murder in the

shooting death of his wife. During his first trial on June 5, 1991, the appellant testified in his own behalf to the effect that the shooting was accidental and occurred during

the course of a close struggle between him and his wife during an argument. The

State presented evidence showing that the shooting was in fact not accidental since

the absence of gunshot particles and residue around the wound indicated that the bullet had been fired from a distance of two or more feet. No one else was present at

the time of the shooting other than the appellant and his wife. Based on this evidence,

-2- the jury returned a verdict of not guilty on the charge of first degree murder, but it was

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

The appellant was retried on the second degree murder charge on October 3,

1991. The State apparently presented the same witnesses as it had in the first trial,1

but during the second trial, the defense rested without putting on any proof. Although the appellant had testified in his own behalf in the first trial, defense counsel decided

that the appellant did not make a good witness, and counsel elected on his own not to

have the appellant testify. The jury found the appellant guilty of second degree murder, and the trial court sentenced him, as a Range I offender, to serve twenty-five

years in the Department of Correction. His conviction was affirmed by the Court of

Criminal Appeals on direct appeal, and no appeal was taken to this court.

On August 17, 1995, the appellant filed a pro se petition for post-conviction

relief alleging that he was denied effective assistance of counsel during his second

trial. Both the appellant and his trial counsel testified at the post-conviction evidentiary

hearing. The appellant testified that at the second trial, he and his counsel did not discuss either his right to testify or whether he should testify. Also, both the appellant

and his counsel testified that counsel alone made the decision not to call the appellant

as a witness, and counsel at no time consulted with the appellant in the decision. Counsel testified that he merely informed the appellant’s son of the decision as they

were entering the courtroom, and that his statements were intended “just more or less

[for] passing on information” rather than for rendering any advice. The appellant is a paraplegic confined to a wheelchair, blind in one eye, and deaf. Because of these

disabilities, his son acted as an interpreter for him throughout the proceedings and

also acted as an intermediary between the appellant and his lawyer. Counsel’s

decision not to have the appellant testify was based on discussions that he had with

1 The appellant contends that the State prese nted the same w itnesses at the second trial as were pres ente d at th e firs t trial; ho weve r, the r eco rd of the fir st trial is not a part o f the r eco rd on appe al in this case.

-3- two jurors after the first trial, who told him that they did not believe the appellant’s

testimony.

In its findings of fact, the trial court found that appellant’s counsel made a

unilateral decision not to call the appellant to the stand. However, the trial court

determined that counsel’s decision was one of trial strategy and therefore did not constitute ineffective assistance of counsel. On that basis, the trial court dismissed

the petition.

On appeal, a majority of the Court of Criminal Appeals affirmed the decision of

the trial court denying the appellant post-conviction relief. Although the intermediate

court determined that the performance of the appellant’s counsel was deficient and below an objective standard of reasonableness, the court concluded that the appellant

failed to meet his burden of proving that counsel’s performance was so serious as to

call into question the outcome of the trial. The appellant now requests this Court to

reverse the decision of the intermediate court finding that the appellant was not

prejudiced by the deficient performance of his counsel, even though his counsel was ineffective and denied him a fundamental constitutional right.

STANDARD OF REVIEW

To sustain his post-conviction petition, the appellant must prove his allegations

by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). Upon

review, this Court will not reweigh or reevaluate the evidence. We give deference to questions concerning the credibility of the witnesses, the weight and value to be given

their testimony, and the factual issues raised by the evidence as they are resolved by

the trial court. State v. Henley, 960 S.W.2d 572, 578 (Tenn. 1997). Furthermore, the

findings of fact of the trial judge on a petition for post-conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless the evidence in the record

preponderates against those findings. Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.

-4- 1996); Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

ANALYSIS

The appellant contends that the Court of Criminal Appeals erred in affirming the

trial court’s denial of post-conviction relief. He argues specifically that he was denied the effective assistance of counsel when his counsel interfered with his constitutional

right to testify. In our analysis of this case, however, we need not reach the Sixth

Amendment issue of whether the appellant’s counsel was ineffective in failing to advise and consult his client concerning his client’s right to testify at the second trial.

We conclude that the appellant has been plainly denied his right to testify in his own

behalf which is guaranteed by Article I, section 9 of the Tennessee Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

While this Court will not ordinarily consider issues that are not raised by the

parties, “[i]n exceptional circumstances, especially in criminal cases, appellate courts,

in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness,

integrity, or public reputation of judicial proceedings.” State v. Manning, 500 S.W.2d 913, 914 (Tenn. 1973) (citation omitted); see also State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984); Tenn. R. Crim. P.

52(b); Tenn. R. App. P. 13(b). That the appellant was denied an opportunity to testify

in his own behalf is plain and obvious, and we elect to address this issue to protect the appellant’s constitutional rights and to prevent manifest injustice. See Tenn. R. Crim.

P. 52(b).

RIGHT TO TESTIFY

It is now a well established principle in both state and federal law that a criminal

defendant has a constitutional right to testify at trial. See State v. Burkhart, 541

-5- S.W.2d 365, 371 (Tenn. 1976); Campbell v. State, 469 S.W.2d 506, 509 (Tenn. Crim.

App. 1971); see also Rock v. Arkansas, 483 U.S. 44, 49-52 (1987); Harris v. New

York, 401 U.S. 222, 225 (1971). At common law, criminal defendants did not enjoy the right to testify in part because it was believed that a defendant’s interest in the trial

made such testimony unreliable.2 Although defendants were not allowed to be sworn

as witnesses, the common law did permit a criminal defendant in a jury trial to plead his or her cause before the jury in an unsworn statement, and the defendant was often

even expected to make an exculpatory statement before the court. See Reed Harvey,

Waiver of the Criminal Defendant’s Right to Testify: Constitutional Implications, 60 Fordham L. Rev. 175, 177-78 & n.25 (1991).

The right of a criminal defendant to speak in his or her own behalf is so important in Tennessee that the right has been constitutionally guaranteed since 1796

beginning with this state’s first Constitution. See Tenn. Const. art. XI, § IX (1796)

(stating “[t]hat in all criminal prosecutions, the accused hath a right to be heard by

himself and his counsel”). By including this provision, the framers of the 1796

Constitution meant to “insure that every accused citizen enjoyed the benefit of counsel [a]nd a correlative right to be heard in person.” Burkhart, 541 S.W.2d at 371.

Although this provision was left unchanged during the constitutional revision of 1834,

see Tenn. Const. art. I, § IX (1835), it was altered in the 1870 Constitution to make clear that a criminal defendant has “the right to be heard by himself,” see Tenn. Const.

art. I, § 9 (1870) (emphasis added).

As originally interpreted, however, Article I, section 9 did not guarantee a

criminal defendant the right to testify. In Wilson v. State, 3 Heiskell 198, 50 Tenn. 232

(1871), this Court stated that Article I, section 9 “certainly [does] not mean that [the

defendant] may become a sworn witness on his own behalf.” Id. at 203, 50 Tenn. at

2 See State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994). For more discussion on the general history of a d efenda nt’s right to tes tify, see Note , Due Process v. Defense Counsel’s Unilateral Waiver of the Defendant’s Right to Testify, 3 Hastings Const. L.Q. 517, 519-29 (1976).

-6- 238. The rationale for this disqualification did not stem from the belief that the

defendant would be less than truthful due to his interest in the litigation or from the

belief that the defendant did not have a fundamental right to explain his version of events. On the contrary, the disqualification was grounded in the belief that since a

testifying defendant would be subject to cross-examination, this procedure would

violate a later provision in Article I, section 9 which “forbids that [the defendant] be compelled to testify against himself.” Id. Despite the rationale, the Wilson Court

believed that the trial court committed reversible error when the defendant was not

allowed to make a statement before the jury. As the Court stated:

An innocent person is sometimes entangled in a web of suspicion by a curious combination of facts, which no one else can explain but himself. . . . He alone may be able by a simple explanation of circumstances[,] which now seem inexplicable otherwise than upon assumption of guilt, or by putting this and that fact together, to remove every shadow of suspicion from himself.

Id. at 206, 50 Tenn. at 241. “In other words, the Constitution guarantees to every

prisoner the right to explain the case made against him, in his own way.” Id. at 207,

50 Tenn. at 242.

Changes in Tennessee criminal procedure have also brought changes in the

interpretation of Article 1, section 9. At the time of Wilson, a criminal defendant was

allowed to make unsworn statements before a jury because the defendant was presumed to be incompetent as a witness. In 1887, the General Assembly enacted

Code section 9782 which stated: “In the trial of all indictments, presentments, and

other criminal proceedings, the party defendant thereto may, at this own request, but not otherwise, be a competent witness to testify therein.” The enactment of this

statute rendered the Wilson approach a nullity because the defendant could now take

the stand to testify in his or her own behalf.

-7- In State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976), this Court again had

occasion to interpret Article I, section 9 of our constitution. In Burkhart, the issue was

whether a criminal defendant, who was represented by counsel, still had the right to make his own argument before the jury. This Court found that although a defendant

no longer has a right to present an unsworn statement before the jury, “[i]n Tennessee

today a criminal defendant continues to have essentially the same rights. The only difference is that criminal trial procedure has been refined and in the process the

defendant has gained the right to be a sworn witness testifying in his own behalf.”

Burkhart, 541 S.W.2d at 371. The Court interpreted Article I, section 9 to mean that

“[i]n all criminal prosecutions the accused has the right to testify as a witness in his

own behalf and to be represented by counsel.” 541 S.W.2d at 371 (emphasis

added).3 Although the General Assembly has recently repealed the successor to Code section 9782, see Pub. Acts 1991, ch. 273, § 32 (repealing Tenn. Code Ann. §

40-17-102), our Tennessee Rules of Evidence clearly indicate that a criminal

defendant is competent to testify. See Tenn. R. Evid. 601.

Under federal law, the right of a criminal defendant to testify is not mentioned specifically in the text of the United States Constitution. Nevertheless, the right has

been recognized as an integral component of due process as guaranteed by the Fifth

and Fourteenth Amendments. The Supreme Court began signaling that the right of a criminal defendant to be heard enjoyed constitutional status as early as 1876 when

the court stated that “a sentence of a court pronounced against a party without

hearing him, or giving him the opportunity to be heard, is not a judicial determination of

3 The Court of Criminal Appeals has also recognized that a defendant may testify as a matter of constitution al right. See, e.g., State v. Frazier, 683 S.W.2d 346, 353 (Tenn. Crim. App. 1984) (stating that “[i]n Tennessee, a person accu sed of a crime is cons titutionally entitled to testify in his own behalf”); Cam pbe ll, 469 S.W.2d at 509 (stating that “[w]hile it is true that no person accused of crime may be compe lled to testify at his trial, he may do so if he so ch ooses”).

-8- his rights, and is not entitled to respect in any other tribunal.” See Windsor v.

McVeigh, 93 U.S. 274, 277 (1876). 4

In 1961, the United States Supreme Court struck down a Georgia statute that

limited a defendant’s ability to present evidence through an unsworn statement at trial.

See Ferguson v. Georgia, 365 U.S. 570 (1961). Although the Court did not reach the question of whether a defendant had a constitutional right to testify, the Court

emphasized that “decades ago the considered consensus of the English-speaking

world came to be that there was not rational justification for prohibiting the sworn testimony of the accused, who above all may be in a position to meet the prosecutions

case.” Id. at 582. After Ferguson, the Court next hinted that a constitutional

foundation supported the right to testify in Harris v. New York, 401 U.S. 222, 225 (1971), when it stated that “[e]very criminal defendant is privileged to testify in his own

defense or refuse to do so.” See also Brooks v. Tennessee, 406 U.S. 605, 612 (1972)

(“Whether the defendant is to testify is an important tactical decision as well as a

matter of constitutional right.”).

In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court

expressly recognized the constitutional basis of the right to testify, and declared that

the right “is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Id. at 501 (quoting Faretta v. California, 422 U.S. 806, 819 n.15

(1975)). The Court found that this right is derived from several constitutional

provisions, including the due process clause of the Fourteenth Amendment,6 the

4 Although the Windsor Court did not classify the right to be heard as a right guaranteed by due process, twenty years later, the Court in Hovey v. E lliott, 167 U.S. 409, 415- 17 (1 897 ), ask ed rh etoric ally, “[a]t c om mo n law no m an w as c ond em ned witho ut be ing af ford ed an oppo rtunity t o be h eard . . . . Can it be doubted that due process of law signifies a right to be heard in one’s defense?”

6 Rock, 483 U.S. at 51.“The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony . . . .” Id.

-9- compulsory process clause of the Sixth Amendment,7 the Sixth Amendment right to

self-representation,8 and as a corollary to the Fifth Amendment privilege against self- incrimination.9 Although the Rock Court did not specifically hold that the right to testify

is a fundamental constitutional right, it acknowledged that “[o]n numerous occasions

the Court has proceeded on the premise that the right to testify on one’s own behalf in

defense to a criminal charge is a fundamental right.” See 483 U.S. at 51 n.10. Based

upon this language, coupled with prior Supreme Court precedent, most federal courts

have concluded that the right to testify is indeed a fundamental constitutional right.10

7 Id. at 52. “Logically included in the accused’s right to call witnesses whose testimony is ‘material and favorable to his defense,’ is a right to testify himself, should he decide it is in his favor to do so.” Id. (citations omitted).

8 Id. “Even more fundamental to a personal defense than the right of self-representation . . . is an accus ed’s right to p resent h is own ve rsion of the events in h is own w ords. A d efenda nt’s oppo rtunity to conduct his own defens e by calling witnesses is incomplete if he may not present him self as a witness.” Id.

9 Id. “Every criminal defendant is privileged to testify in his own defense, or refuse to do so. . . . ‘[The Fifth Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the rig ht to re ma in silen t unle ss h e cho ose s to s pea k in th e unf etter ed ex ercis e of h is ow n will . . . .” Id. at 53, 107 S. Ct. at 2710 (citations omitted) (alteration in original).

10 See, e.g., Unite d Sta tes v. Boyd , 86 F.3d 719, 723 (7th Cir. 1996) (characterizing the right as a “funda men tal choice” ); Unite d Sta tes v. Ortiz , 82 F.3d 1066, 1070 (D.C. Cir. 1996) (“We, like our sister circuits and the state courts, have no doubt that a criminal defendant has a fundamental constitutional right to testify that is p ersona l to the defe ndant an d cann ot be wa ived by cou nsel or the court.”); United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir. 1995) (“This right is personal and thus only the defendant may w aive it.”); Jordan v. Harge tt, 34 F.3d 310, 312 (5th Cir. 1994) (“A criminal defendant has a fundam ental con stitutional right to te stify on his ow n beha lf.”); Fos ter v. D elo, 11 F.3d 1451, 14 57 (8th Cir. 1 994 ) (en b anc ) (“A c rim inal de fend ant’s right to put o n a de fens e, inc luding the rig ht to te stify in one’s own behalf, is a fundamental constitutional guarantee that can only be waived by the defendant hims elf.”); United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993) (“An accused’s right to testify is a constitution al right of fun dam ental dim ension.”) ; United States v. Teague, 953 F.2d 1525, 1532 (11th C ir. 199 2) (“W e now reaf firm that a crim inal de fend ant h as a f und am enta l cons titution al righ t to tes tify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or b y defens e coun sel.”); United S tates v. Sc ott, 909 F.2d 488, 490 (11th Cir. 1990) (“It is clear then that a defend ant’s right to te stify is now a re cognized fundam ental right.”); United States v. Narducci, 18 F. Supp. 2d 481, 495 (E.D. Pa. 199 7) (“Wh ile the defendant may, and should, receive advice from his attorney, this fundamental right cannot be contravened by an attorney even if the defend ant’s dec ision cau ses stra tegic dam age.”); Campos v. United States, 930 F. Supp. 787, 790 (E.D.N.Y. 1996) (“The Court concurs with the analysis in the above cited precedent and concludes that the right to testify is a fundamental constitutional right, personal to the defendant that cannot be waived by couns el.”); Porter v. Singletary, 883 F. S upp. 660 , 666 (M .D. Fla. 19 95) (ack nowled ging the E leventh Circuits’s re cognition of the right to testify as fun dam ental); Deluca v. Lord, 858 F. Supp. 1330, 1354 (S.D.N .Y. 1994) (“ This C ourt finds that Rock, especially when read in light of the Supreme Court’s earlier preced ent, supp orts the c ontention that the right to testify is indeed fundam ental in cha racter.”); Smith v. Cam pbe ll, 781 F. Su pp. 5 21, 5 30 (M .D. T enn . 199 1) (“T he rig ht of a defe nda nt to ta ke th e sta nd is fundam ental and may on ly be waived by the defe ndant him self.”), aff'd by mem. , 961 F.2d 1578 (6th Cir. 1992).

-10- In addition, virtually all of our sister states addressing the issue have also either held

or stated that the right to testify is a fundamental right.11

While no prior Tennessee case has expressly held that the right of a criminal

defendant to testify is a fundamental right, it is beyond serious dispute that the right

has achieved fundamental status both under the state and federal constitutions. The right of criminal defendants to be heard in their own defense is guaranteed in

11 See, e.g., LaVign e v. State , 812 P.2d 217, 219 ( Alas ka 1 991 ) (“T he co nstitu tiona l right to testify is both personal to the criminal defendant and fundamental to the dignity and fairness of the judicial proces s.”); State v. Gulbrandson, 906 P.2d 579, 597 (Ariz. 1995) (“The Un ited States Supreme C ourt has held that a defendant has a fun damental right, guaranteed unde r the Constitution, to testify.”); People v. Robles, 466 P.2d 710, 716 (Cal. 1970) (“We are satisfied that the right to testify in one’s own behalf is of such fundamental importance that a defendant who timely demands to take the stand contrary to the advice given by his counsel has the right to give an exposition of his defense before a jury.”); Peo ple v. C urtis , 681 P.2d 504, 512 (Colo. 1984) (“Moreover, we are persuaded for several independent reasons that the right to testify is so fundamental that these [procedural] safeguards [esta blishe d by Johnson v. Zerbst] are nec essary.”); Boyd v. United States, 586 A.2d 670, 674 (D.C. 1991) (“Accordingly, we hold that the defendant’s right to testify in a criminal trial is a fundamental and person al right which can on ly be waived by the defe ndant.”); State v. Raydo, 713 So. 2d 996, 998 (Fla. 1998) (“A defendant’s right to testify is a fundamental right under the state and federal constitutions.”); Boone v. State , 481 S.E.2d 569, 572 (Ga. Ct. App. 1997) (“A criminal defendant has a fundamental right to testify.”); Tach ibana v. S tate, 900 P.2d 1293, 12 99 (Ha w. 1995 ); State v. Hoffman, 778 P.2d 811, 812 (Idaho Ct. App. 1989) (“We begin our analysis by noting that every criminal defendant has a fundamental right to testify on h is or her ow n beha lf.”); People v. Madej, 685 N.E.2d 908, 923 (Ill. 1997) (“A defendant’s right to testify at trial is a fundamental constitutional right, as is his or her right to choose not to testify.”); Passa mich ali v. State, 569 A.2d 733, 738 (Md. Ct. Spec. App. 1990) (“The right of a criminal defendant to take the witness stand and testify in his own defense is fundamental, and its existence canno t be doub ted.”); Comm onwealth v. Freeman, 564 N.E.2d 11, 14 (Mass. App. Ct. 1990) (“A criminal defend ant has a funda men tal right to testify on h is own be half.”); State v. Young, 882 S.W.2d 291, 293 (Mo. C t. App. 199 4) (“Def endan t’s right to testify in his o wn beh alf is a fund ame ntal cons titutional right, waivable o nly by hims elf.”); Ingle v. State , 546 P.2d 598, 599 (Nev. 1976) (“We are satisfied that the right to testify in one’s own be half is of su ch fund ame ntal imp ortance that a defe ndant w ho time ly dema nds to take the s tand cont rary to the a dvice given by his c oun sel ha s the right to give a n exp ositio n of h is defens e before a jury.”); State v. Savage, 577 A.2d 455, 472 (N.J. 1990) (“In our view, the right to testify is essential to our state-based concept of due process of law, which guarantees a ‘fair and impartial trial in which there is a legitimate and decorous recogn ition of the substantive rights of the defendant.’”) (citation om itted); State v. Bey, 709 N.E .2d 484, 4 97 (Oh io 1999) (“ Gene rally, the defen dant’s righ t to testify is regarded both as a fundamental and a p ersonal right that is waivable only by an accused.”); Perez v. S tate, 960 S.W.2d 84, 88 (Tex. Ct. App. 1997) (“[T]he right to testify is a fundamental constitution al right desig ned to gu arantee a fair trial . . . .”); State v. Brooks, 833 P.2d 362, 364 (Utah C t. App. 1992) (“The right of criminal defendants to testify and present their version of events in their own words is fundamental. This fundamental right is guaranteed by both the United States Constitution and the Utah Cons titution.”) (citation o mitted); State v. Mumley, 571 A.2d 44, 45 (Vt. 1989) (“Criminal defend ants ha ve a fund ame ntal right to tes tify in their own de fense, u nder bo th the fede ral and sta te constitution s.”); State v. Thomas , 910 P.2d 475, 478 (Wash. 1996) (“The right to testify in one’s own behalf ha s been charac terized as a person al right of ‘fund ame ntal’ dime nsions.” ); State v. Neuman , 371 S.E.2d 77, 81 (W. Va. 1988) (“[T]he decision to testify in one’s own behalf, like the right to determine what plea to enter, the right to a jury trial, the right to counsel, and the right to be present at trial, is so fund am enta l that p roce dura l safe gua rds m ust b e em ployed on th e rec ord to insur e tha t the d efen dan t’s waiver of the right to tes tify was m ade volu ntarily, know ingly, and intelligen tly.”); State v. Wilson, 508 N.W.2d 44, 48 (Wis. 1993) (“Thus, in direct contrast with Albright, the United States Supreme Court has clearly indicate d that the c onstitutiona l right to testify sho uld be trea ted as fu ndam ental in natu re.”); Herdt v. State , 891 P.2d 793, 797 ( W yo. 19 95) (“ Crim inal de fend ants have a righ t to tes tify on th eir ow n beh alf . . . . We have also acknowledged that a defendant’s right to testify on his own behalf is a fundamental right.”) (citations omitted).

-11- Tennessee by the state and federal Constitutions, by statute,12 by over a century of prior case law, and by current practice. We have no reservation, therefore, in holding

that the right of a criminal defendant to testify in his or her own behalf is a fundamental constitutional right.

Since the right to testify at one’s own trial is a fundamental right, it follows that the right may only be waived personally by the defendant. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (stating 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”); Vermilye v. State, 754 S.W.2d 82, 88 (Tenn. Crim. App. 1987) (“The decision as to whether an accused

should testify at trial rests with the accused, not defense counsel.”); cf. State v.

Blackmon, 984 S.W.2d 589, 591 (Tenn. 1998) (“Due to our long-standing presumption

against waiver of fundamental constitutional rights, these rights must be personally

waived by a defendant.”).13 Generally, a right that is fundamental and personal to the defendant may only be waived if there is evidence in the record demonstrating “an

intentional relinquishment or abandonment of a known right or privilege.” see Johnson

v. Zerbst, 304 U.S. 458, 464 (1938). The waiver of a fundamental right will not be

presumed from a silent record, see State v. Muse, 967 S.W.2d 764, 767 (Tenn. 1998);

House v. State, 911 S.W.2d 705, 715 n.20 (Tenn. 1995), and the courts should indulge every reasonable presumption against the waiver of a fundamental right.

State ex rel. Barnes v. Henderson, 423 S.W.2d 479, 502, 220 Tenn. 719, 730 (Tenn.

1968). To ensure that defense attorneys in future criminal cases do not unilaterally

12 Although the General Assembly repealed Tennessee Code Annotated section 40-17-102, the legislature h as con tinued to re cognize th at a defe ndant ha s a right to be heard in h is or her ow n defen se. See Tenn. Code Ann. § 40-14-101 (1998) (“In all criminal prosecutions, the accused is entitled to a speed y trial, and to be h eard in pe rson an d by coun sel.”).

13 Although we do not address the question of ineffective assistance of counsel, it should be em pha sized that tr ial tac tics a nd st rateg y do no t affo rd to d efen se c oun sel th e aut hority to unilat erally waive a criminal defendant’s right to testify. While it is true that a defendant’s decision whether to testify is fraught with tactical and strategic implications, the decision as to whether to exercise the right to testify is one whic h can only be ma de by t he cr imin al def end ant, a nd co uns el can not u nilate rally wa ive this right, even when counsel strongly believes the exercise of the right is not in the best interests of the crimina l defenda nt.

-12- deprive criminal defendants of the fundamental right to testify, in every trial where the

defendant does not testify, the trial court should allow, and indeed require, defense

counsel to employ the following procedure.

At any time before conclusion of the proof, defense counsel shall request a

hearing, out of the presence of the jury, to inquire of the defendant whether the defendant has made a knowing, voluntary, and intelligent waiver of the right to testify.

This hearing shall be placed on the record and shall be in the presence of the trial

judge. Defense counsel is not required to engage in any particular litany, but counsel must show at a minimum that the defendant knows and understands that:

(1) the defendant has the right not to testify, and if the defendant does not testify, then the jury (or court) may not draw any inferences from the defendant’s failure to testify; (2) the defendant has the right to testify and that if the defendant wishes to exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the decision whether or not to testify; that the defendant has been advised of the advantages and disadvantages of testifying; and that the defendant has voluntarily and personally waived the right to testify.

Defense counsel is generally in the best position to voir dire the defendant

concerning a wavier of the right to testify, and the hearing outlined above will avoid any possible perceived pitfalls of mandating direct questioning by the trial court itself.

Since the right to testify is the mirror image of the right to remain silent, there is an

inherent risk that a trial judge participating in the questioning may cast an unflattering light on the right not to testify. See Commonwealth v. Hennessey, 502 N.E.2d 943, 947 (Mass. App. Ct. 1987). Under normal circumstances, therefore, the trial judge

should play no role in this procedure, unless the judge believes there is evidence that the defendant is not making a valid waiver of the right to testify. In such a case, the

trial judge is obliged to question the defendant directly to the extent necessary to

ensure a valid waiver.

-13- The approach outlined above strikes the proper balance between the

preservation of a fundamental right and the need to protect the relationship and

confidences between defense counsel and his or her client. It seeks to minimize judicial interference with the attorney-client relationship while ensuring that defendants

know and understand that they have a fundamental right to testify in their own behalf.

This approach also facilitates appellate review by having a clear waiver of the right to testify present on the record of the trial.

We emphasize, however, that neither the right to testify discussed herein, nor the procedural protections adopted to preserve that right are new constitutional rules

which must be retroactively applied. A constitutional rule is considered “new” when

the rule amounts to a “clear break” with past precedents. See State v. Enochs, 823 S.W.2d 539, 540 (Tenn. 1991). A rule that merely restates or reemphasizes pre-

existing state law is not one that is “new.” See State v. Prince, 781 S.W.2d 846, 850

(Tenn. 1989). It follows that the right of a criminal defendant to testify in his or her

own behalf is not new. As previously stated, this right has long been recognized by

statute, case law, and constitutional provision. This decision simply clarifies and reiterates that the right is fundamental and must be personally waived by the

defendant. The procedural protections set forth in this decision are designed to

ensure that any waiver of the right is personally made by the defendant. The procedures are prophylactic measures which are not themselves constitutionally

required. As such, the procedures adopted herein do not establish a new

constitutional rule which must be retroactively applied. Trial courts should adhere to these procedural guidelines in all cases tried or retried after the date of this decision.

However, the mere failure to follow these guidelines will not in and of itself support a

claim for deprivation of the constitutional right to testify if there is evidence in the

record to establish that the right was otherwise personally waived by the defendant. Compare Johnson v. State, 834 S.W.2d 922, 924 (Tenn. 1992) (discussing advice

-14- procedures relevant to entry of guilty pleas and stating that “it is the result [a knowing

and voluntary plea] not the process that is essential to a valid plea”).

In this case, it is apparent from the record that the appellant did not personally

waive the right to testify. In fact, the record is clear that appellant’s counsel

unilaterally decided not to call the appellant as a witness to the stand at the second trial. Counsel neither advised the appellant of his right to testify nor discussed with the

appellant the advantages and disadvantages of testifying or refraining from testifying.

Rather, counsel merely informed the appellant of his decision as they were entering the courtroom. Under these circumstances and given his disabilities, the appellant

had little time or opportunity to question the decision of his counsel. Because the right

to testify is fundamental and personal to the accused, counsel did not have the authority to unilaterally decide the issue on the appellant’s behalf. Under these

circumstances, it is clear that the appellant was denied his fundamental right to testify

which is guaranteed by both the state and federal constitutions. Having determined

that the appellant’s right to testify was violated in this case, we must next determine

whether the error is subject to the harmless error doctrine.

HARMLESS ERROR DOCTRINE

Prior to 1967, neither Tennessee nor federal courts applied the harmless error

doctrine to constitutional violations. See State v. Williams, 977 S.W.2d 101, 104

(Tenn. 1998); Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993); Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302 (1991) ( Rehnquist, C.J.). Consequently, when a

constitutional error occurred in a criminal trial, reversal was the automatic remedy. Id.

-15- In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the United States Supreme Court rejected the proposition that all federal constitutional

errors that occur in the course of a criminal trial require reversal. The Chapman Court

held that the Fifth Amendment violation of prosecutorial comment upon the defendant’s failure to testify would not require reversal of a conviction if the State

could show “beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained.” Id. at 24, 87 S. Ct. at 828. The Chapman standard

recognizes that “certain constitutional errors, no less than other errors, may have been

‘harmless’ in terms of their effect on the factfinding process at trial.” Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986).

Since Chapman, the Court has “repeatedly reaffirmed the principle that an

otherwise valid conviction should not be set aside if the reviewing court may

confidently say, on the whole record, that the constitutional error was harmless

beyond a reasonable doubt.” Id. Generally, in modern jurisprudence application of

the harmless error doctrine is the rule rather than the exception. See Williams, 977 S.W.2d at 105; see also Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 3106-07,

92 L. Ed. 2d 460 (1986). Indeed, both the United States Supreme Court14 and the

14 See e.g. Neder v. United States, __ U.S. __, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (holding that harmless error analysis applies to erroneous jury instructions which direct the jury to presume an ultimate eleme nt of the of fense b ased u pon pro of of cer tain predic ate facts ); Arizona v. F ulmina nte, 499 U.S. 27 9, 111 S . Ct. 1246 , 113 L. Ed . 2d 302 (1 991) (ho lding that ha rmles s error an alysis applies to erroneo us adm ission of inv oluntary co nfessio ns); Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) (holding that harmless error analysis applies to unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Car ella v. C alifor nia, 491 U.S . 263, 109 S.Ct. 2419, 105 L. Ed. 2d 218 (1989) (holding that harmless error analysis applies to a jury instruction containin g an erro neous conclus ive presu mption ); Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988) (applying harmless error analysis to the admission of evidence at the senten cing stag e of a ca pital case in violation of the Sixth Am endm ent right to co unsel); Pop e v. Illino is, 481 U .S. 497, 10 7 S. Ct. 19 18, 95 L. E d. 2d 439 (1987) (h olding that h arm less erro r analysis ap plies to a jury instruc tion mis stating an eleme nt of the of fense) ; Rose v. Clark , 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (holding that harmless error analysis applies to a jury instruction containing an erroneo us rebu ttable pres ump tion); Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (198 6) (ho lding t hat h arm less error analys is app lies to the e rron eou s ex clus ion of the d efen dan t’s testimo ny regard ing the circ ums tances of his con fession ); Dela ware v. Van Arsd all, 475 U.S. 673, 106 S.Ct. 1431, 89 L. Ed. 2d 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (holding that harmless error analysis applies to trial court’s error in restricting the defendant’s right to cross-examine a witness for bias in violation of the Sixth Ame ndm ent); Rus hen v. Spa in, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (19 83) (stating that som e violations o f a defen dant’s righ t to be pres ent at trial m ay be sub ject to harm less erro r analysis); United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed.2d 96 (1983) (holding that improper comment on a defendant’s silence at trial in violation of the Fifth Amendment right against s elf-incrim ination is su bject to ha rmles s error an alysis); Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982) (holding that due process violation resulting from statute which improperly forbade trial court’s giving of a jury instruction on a lesser included offense in a capital case was su bject to ha rmles s error an alysis); Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed.2d

-16- courts of this State15 have applied the harmless error doctrine to a wide variety of constitutional errors. As the United States Supreme Court has recognized, “[t]he

common thread connecting these cases is that each involved ‘trial error’ – error which

occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to

determine whether its admission was harmless beyond a reasonable doubt.”

Fulminante, 499 U.S. at 307, 111 S.Ct. at 1264.

Application of the harmless error doctrine does not signify a disrespect of the

constitutional rights which have been violated. Rose, 478 U.S. at 577, 106 S.Ct. at 3105. To the contrary,

[t]he harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.

640 (19 79) (hold ing that failure to instruct the jury on the p resum ption of inno cence is an error subjec t to harm less erro r analysis); Moo re v. Illin ois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977) (holding that erroneous admission of identification evidence in violation of the Sixth Amendment right to counsel is subjec t to harm less erro r analysis); Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (197 3) (ho lding t hat a dm issio n of th e out -of-c ourt s tatem ent o f a no ntes tifying c ode fend ant in violation of the Sixth Am endm ent right to co unsel is s ubject to h arm less erro r analysis); Milton v. Wainwright, 407 U.S. 371, 92 S . Ct. 2 174 , 33 L . Ed. 2 d 1 (1 972 ) ((ho lding t hat h arm less error analys is applies to a confession obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed . 2d 246 (1 964)); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 419 (1970) (holding that harmless error analysis applies to erroneous admission of evidence obtained in violation of the Fou rth Am endm ent); Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970) (holding tha t denial of co unsel at a prelimina ry hearing in v iolation of the Sixth Am endm ent right to couns el is subjec t to harm less erro r analysis).

15 See e.g. State v. Valentine, 911 S.W .2d 3 28 (T enn . 199 5) (ho lding t hat h arm less error analys is applies to the erroneous admission of evidence seized pursuant to an invalid warrant and in violation of the Fou rth Am endm ent); State v. Ho well, 868 S.W.2d 238, 252 (Tenn. 1993) (holding that harmless error analysis applies both to the denial of a defendant’s right to effective cross-examination and to a jury’s consideration of an unconstitutional aggravating circumstance at the sentencing phase of a capital trial); State v. Deuter, 839 S.W .2d 391, 3 96 (Te nn. 1992 ) (holding th at harm less erro r analysis ap plies to a denial of the defe ndant’s rig ht of con frontation) ; State v. Bates, 804 S.W.2d 868, 876 (Tenn. 1991) (holding tha t erroneo us adm ission of a defend ant’s con fession obtained in violation of his right to couns el is subjec t to harm less erro r analysis); State v. West , 767 S.W.2d 387, 398-99 (Tenn. 1989) (holding tha t Eighth Am endm ent error in minim izing role of the jury in a capital c ase is su bject to harm less erro r analysis); State v. Coker, 746 S.W.2d 167, 170 (Tenn. 1987) (applying harmless error analysis to erroneous jury instructions that included an impermissible rebuttable presumption in violation of due p rocess ); State v. Mitc hell, 593 S.W.2d 280, 285 (Tenn. 1980) (holding that harmless error analysis ap plies to identifica tion proof o btained in v iolation of the defend ant’s right to c ounse l); State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App. 1996) (applying harmless error analysis to the prosec utor’s com men t on the de fendan t’s failure to tes tify which violated the defe ndant’s F ifth Am endm ent privilege a gainst se lf-incrimin ation); State v. Thompson , 832 S.W .2d 5 77, 5 81 (T enn . Crim . App. 1991) (applying harmless error analysis to the infringement upon the defendant’s due process right to the presumption of innocence which occurred when the defendant appeared shackled in the presence of the jury).

-17- Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1436 (citations and internal quotation marks omitted); see also Howell, 868 S.W.2d at 253. The harmless error doctrine is an

embodiment of the fundamental premise that “the Constitution entitles a criminal

defendant to a fair trial, not a perfect one.” Howell, 868 S.W.2d at 253 quoting Van

Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436.

Despite the strong interests that support application of the harmless error doctrine, the United States Supreme Court and this Court have consistently held that

some errors defy harmless error analysis and require reversal. See e.g. Fulminante,

499 U.S. at 309, 111 S.Ct. at 1265; Rose, 478 U.S. at 577, 106 S.Ct. at 3105; Chapman, 386 U.S. at 23 n.8, 87 S.Ct. at 828 n.8; State v. Harris, 989 S.W.2d 307, 315 (Tenn. 1999). The cases in which the United States Supreme Court and this

Court have refused to apply the harmless error doctrine involve errors that are

“structural defects in the constitution of the trial mechanism.” Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265. These errors have an impact upon “[t]he entire conduct of the

trial from beginning to end.” Id. Stated another way, “these errors deprive

defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.’” Neder, __ U.S. at __, 119 S. Ct. at 1833 (quoting Rose, 478 U.S. at 577, 106 S. Ct. at 3101). Only a very limited class

of errors have been found to be “structural,” and subject to automatic reversal. See

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (complete

denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)

(adjudication by a biased judge); Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v.

Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984) (denial of self-

representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078,

124 L. Ed. 2d (1993) (defective reasonable doubt instruction); State v. Muse, 967 S.W.2d 764, 768 (Tenn. 1998) (denial of right to be present at jury selection); State v.

-18- Benson, 973 S.W.2d 202, 207 (Tenn. 1998) (denial of right to impartial judge); State v.

Bobo, 814 S.W.2d 353, 357 (Tenn. 1991) (denial of right to trial by jury).16

Unlike such defects as a complete deprivation of counsel or trial before a biased judge, denial of the defendant’s right to testify does not in all cases render a

criminal trial fundamentally unfair or call into question the reliability of the trial as a

vehicle for determining guilt or innocence. Such an error involves the exclusion of testimony which is evidence that can be “quantitatively assessed in the context of

other evidence presented in order to determine whether its admission was harmless

beyond a reasonable doubt.” Fulminante, 499 U.S. at 307, 111 S. Ct. at 1264. In some cases, “the defendant’s testimony would have no impact, or even a negative

impact, on the result of trial.” United States v. Tavares, 100 F.3d 995, 999 (D.C. Cir.

1996), cert. denied 520 U.S. 1160, 117 S. Ct. 1344, 137 L. Ed. 2d 502 (1997); see

also State v. Robinson, __ P.2d __, __ (Wash. 1999). Likewise, in some cases, denial

of a 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. The fact that reversal may be required in some

cases is no reason to eschew the harmless error doctrine entirely when the error involved is clearly of a trial, rather than a structural nature. Cf. Fulminante, 499 U.S. at 312, 111 S. Ct. at 1266.

As such, denial of the right to testify has been appropriately characterized as a

trial error which is subject to the harmless error doctrine. Indeed, the vast majority of

jurisdictions which have considered this issue have held either that the harmless error

16 Contrary to the dissent’s assertion, the analysis in this opinion clearly explains why denial of the right to self-representation is not subject to the harmless error doctrine while denial of the right to testify is subject to the harmless error doctrine. Despite unsupported statements in the dissent, the right of self-repr esenta tion is not a “les ser right.” Ins tead, it is a right w hich is co -equal to th e right to testify. However, denial of the right to self representation impacts “[t]he entire conduct of the trial from beginning to end,” an d therefo re is not su bject to ha rmles s error an alysis. Fulm inante , 499 U.S . at 310, 11 1 S. Ct. at 1265. We reject the assertion of the dissent that courts should somehow rank constitutional rights as more or less funda mental in determining whethe r harmless error analysis should apply. W hether a constitution al right is fund ame ntal relates o nly to whethe r the defe ndant m ust pers onally waive th e right. The fact that a right must be personally waived by a defendant is not relevant to the determination of whether or not the harmless error doctrine applies. Instead, the impact of the error upon the trial mec hanism mus t be cons idered in de termin ing wheth er the ha rmles s error do ctrine app lies.

-19- doctrine 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) must be established if the defendant is to

prove ineffective assistance of counsel as a result of counsel’s unilateral waiver of the right to testify. 17 See e.g. Tavares, 100 F.3d at 999 (citing other federal cases);

Commissioner of Correction v. Rodriquez, 610 A.2d 631, 636 n.9 (Conn. 1992);

People v Johnson, 72 Cal.Rptr.2d 805, 820 (Cal. App. 4 Dist. 1998); State v. Silva, 890 P.2d 702, 712 (Hawai’i 1995) (overruled on other grounds in Tachibana v. State,

900 P.2d1293, 1302-03 (Hawai’i 1995); People v. Solomon, 560 N.W.2d 651, 654-56

(Mich. Ct. App. 1996); State v. Paulsen, 726 A.2d 902, 907 (N.H. 1999); State v.

Arguelles, 921 P.2d 439, 441 (Utah 1996); Robinson, __ P.2d at __; State v. Flynn,

527 N.W.2d 343 (W is. App. 1994).18 Application of the harmless error doctrine to the

denial of a criminal defendant’s right to testify strikes the appropriate balance between

the judicial system’s interest in obtaining reliable results and the system’s competing

interest in having litigation end at some point.19 Van Arsdall, 475 U.S. at 681, 106

S.Ct. 1436; Chapman, 386 U.S. at 22, 87 S.Ct. at 827.

17 As the dissenting opinion points out, the analysis is slightly different under the Sixth Amendment than the Fifth Amendment. The primary difference is that under the Sixth Amendment the burden is on the petitione r to prove p rejudice from couns el’s action in u nilaterally depriving a defen dant of the right to testify. Under the Fifth Amendment, the burden is on the State to prove that the deprivation was harmless beyond a reasonable doubt. Given the importance of the right to testify in Tennessee, we deem it mo re appropriate to place the burden on the State to prove the deprivation harm less. However, a rule of presumed prejudice under the Sixth Amendment has the same practical effect as holding that den ial of th e righ t to tes tify und er the Fifth A me ndm ent d efies harm less error analys is. Ac cord ingly, contrary to th e dissen t’s assertio n, our relian ce on c ases w hich hav e analyzed th is issue u nder the Sixth Am endm ent and r ejected a rule of pre sum ed preju dice is clea rly appropria te.

18 The dissenting opinion criticizes the precedent upon which we rely in holding that the harmless error doctrine applies to denials of the right to testify. Interestingly, however, the dissent cites no authority in support of the rule it advocates. The rule of automatic reversal which the dissent would adopt was adopted by the Maine federal district court in United S tates v. Bu tts, 630 F. Supp. 1145, 1148 (D.Me. 1986). However, this decision has not been followed by other federal courts. Indeed, only one other jurisd iction in the U nited State s appe ars to ap ply a similar ru le. State v. Ro sillo, 281 N.W.2d 877, 879 (M inn. 1979 ).

19 The dissenting opinion states that the harmless error doctrine “amounts to no more protection than one could expe ct fro m a pape r tiger , and this fu nda me ntal rig ht de serv es th e pro tectio n of a utom atic reversal.” This statement is representative of the dissent’s fundamental misunderstanding of the harmless error doctrine. The harmless error doctrine is not a protection. Indeed, the harmless error doctrine b ecom es releva nt only after a rig ht has be en violated . The pro cedura l guidelines s et forth here in are desig ned to pro tect th e fun dam enta l right to testify.

-20- Once a constitutional error has been established, as in this case, the burden is upon the State to prove that the constitutional right violation is harmless beyond a

reasonable doubt. Harris, 989 S.W.2d at 314. “Harmless error review looks . . . to the

basis on which the jury actually rested its verdict.” Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081. However, courts often identify certain factors to aid in discerning the actual

basis on which a jury rested its verdict. For example, in Howell, this Court stated that

a reviewing court determining whether the denial of effective cross-examination is harmless beyond a reasonable doubt should consider the following factors: (1) the

importance of the witness’s testimony in the prosecution’s case; (2) the cumulative

nature of the testimony; (3) the presence or absence of evidence corroborating or contradicting the witness on material points; (4) the extent of cross-examination

otherwise permitted; and (5) the overall strength of the prosecution’s case. See

Howell, 868 S.W.2d at 253 (citing Van Arsdall, 475 U.S. at 684-85, 106 S.Ct. at 1438).

Denial of a defendant’s right to testify is analogous to denial of a defendant’s

right to effective cross-examination. In both instances, the defendant is being

deprived of the right to present evidence to the jury. While not entirely relevant by

their terms in the context of a denial of the right to testify, the factors identified in Howell are indicative of the concerns that arise under harmless error review when

evidence has been erroneously excluded. Therefore, courts should consider the

following factors when determining whether the denial of the right to testify is harmless

beyond a reasonable doubt: (1) the importance of the defendant’s testimony to the

defense case; (2) the cumulative nature of the testimony; (3) the presence or absence

of evidence corroborating or contradicting the defendant on material points; (4) the

overall strength of the prosecution’s case. As previously stated, the goal of harmless

error analysis is to identify the actual basis on which the jury rested its verdict.

Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081. Accordingly, the factors identified herein are merely instructive and not exclusive considerations.20

20 Contra ry to the disse nt’s asse rtion, we are not limiting re view und er the ha rmles s error do ctrine to only these f our facto rs.

-21- Complete consideration of these factors is not possible in this Court because the record on appeal does not contain Momon’s testimony from his first trial nor does

it contain an offer of proof indicating the substance of the testimony Momon would

have offered at his second trial if he had not been denied the right to testify. In the trial court, Momon was attempting to establish a Sixth Amendment claim of ineffective

assistance of counsel, and the State was attempting to meet that claim. The record is

simply not sufficient for this Court to evaluate whether the denial of the appellant’s constitutional right to testify was harmless beyond a reasonable doubt. Therefore, we

conclude that this case must be remanded to the trial court for a hearing at which the

State will bear the burden of establishing that the denial of the appellant’s constitutional right to testify was harmless beyond a reasonable doubt. Compare

State v. Phipps, 959 S.W.2d 538 (Tenn. 1997) (remanding to the trial court for a

hearing at which the State would bear the burden of rebutting the presumption of

vindictiveness); McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974) (remanding for a

determination of whether the denial of counsel at preliminary hearing constituted

harmless error). We are confident that the trial judge will carefully consider the record

developed at the hearing on remand in light of the factors identified herein as relevant

to the determination of whether the error was harmless beyond a reasonable doubt. If the trial court concludes that the State has met its burden of establishing that the error

was harmless, the appellant’s conviction should be sustained. However, if the trial

court concludes that the State failed to prove that the error was harmless beyond a

reasonable doubt, the trial court must vacate the appellant’s conviction.21

21 The disse nting opinio n’s as sertio n tha t the h arm fulne ss o f the e rror in this c ase can b e jud ged only because the court has the benefit of comparing the result of the first trial, at which the defendant testified, to the result of the secon d trial, at which th e defen dant did n ot testify. W e reject this assertion . The task of the trial court is not to compare the resu lt of the two trials. The ta sk of the trial court is to consider the testimony that the defendant would have given and the proof which was actually offered at the second trial in light of the factors delineated herein and any other factors that are relevant to the determination. Apparently, the dissent fails to recognize that the appellant is entitled at the hearing on remand to make an offer of what his testimony would have been at the second trial had he not been deprived of the right to testify by counsel. Such a procedure can and should be followed in every case where a defend ant estab lishes that h e or she was de nied the righ t to testify. Cf. Tenn. R. Evid. 103(a)(2). Therefore, the dissent’s assertion that the harmless error doctrine can be applied only when “the d efen dan t has been fortu itous ly tried tw ice an d can dem ons trate diffe rent o utco me s” is to tally without m erit.

-22- CONCLUSION

To summarize, we hold that the right to testify is fundamental and

constitutionally guaranteed by Article I, section 9 of the Tennessee Constitution and

the Fifth and Fourteenth Amendments to the United States Constitution. As such, the right must be personally waived by the criminal defendant. In cases tried or retried

hereafter, trial courts should employ the procedural guidelines set forth in this opinion

to ensure that a criminal defendant personally waives the right to testify. By unilaterally deciding not to call the appellant as a witness, counsel in this case

deprived the appellant of his fundamental right to testify. While the error is subject to

the harmless error doctrine, the record before this Court is not sufficiently developed to enable this Court to determine whether or not the error was harmless beyond a

reasonable doubt. Accordingly, we remand to the trial court for a hearing at which the

State shall bear the burden of establishing that the denial of the appellant’s

constitutional right to testify was harmless beyond a reasonable doubt. If the State

fails to meet this burden, the trial court shall vacate the defendant’s conviction. Costs

of this appeal are taxed to the State of Tennessee.

______________________________ FRANK F. DROWOTA III, JUSTICE

Concur: Anderson, C.J., Holder, J.

Concurring/Dissenting Barker, J. and Birch, J. - See separate Concurring/Dissenting Opinion.

-23-