FILED IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE March 30, 2000

Cecil Crowson, Jr. Appellate Court Clerk NAPOLEON MOMON, ) FOR PUBLICATION ) Appellant, ) ) 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

For Amicus Curiae Michael E. Moore Tennessee Association of Criminal Solicitor General Defense Lawyers Paula R. Voss Daryl J. Brand Knoxville, Tennessee Associate Solicitor General Nashville, Tennessee David M. Siegel Associate Professor William H. Cox, III New England School of Law District Attorney General Boston, Massachusetts 11th Judicial District

Rodney C. Strong Assistant District Attorney Chattanooga, Tennessee

OPIN ION O N PE TITION TO REHE AR

The appellant, Napoleon Momon, and Amicus Curiae, Tennessee

Association of Criminal Defense Lawyers, (“TACDL”), have filed petitions to rehear

the opinion of this Court issued on November 15, 1999. The appellant asserts in his petition that the Court erred in finding that the harmless error doctrine may be

applied to a violation of the fundamental right to testify. TACDL challenges the

voir dire procedure adopted in the opinion and argues that a defendant should

also be permitted to execute a written waiver of the right to testify in place of the

on-the-record voir dire waiver. In its response, the State asserts that the Court

could modify its decision to allow the defendant to make an on-the-record

statement acknowledging that he or she has been advised 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.

According to the State, this on-the-record statement approach is preferable to a

written waiver and also protects the attorney-client privilege. However, in the

event the Court agrees with TACDL and permits a written waiver, the State

asserts that the waiver should not be executed until after the presentation of the

prosecution’s case-in-chief.

After due consideration, we conclude that the appellant’s petition to rehear

challenging the Court’s application of the harmless error doctrine to a violation of

the right to testify should be and hereby is DENIED. The members of this Court

continue to adhere to their original opinions on this issue.

-2- However, the petition to rehear filed by TACDL is well-taken and is

GRANTED. We hereby hold that defendants may waive the right to testify either

by signing a written waiver or by engaging in the voir dire procedure set out in the

initial decision of this Court. Cf. Tenn. R. Crim. P. 23 (allowing a written waiver of

trial by jury); State v. Muse, 967 S.W.2d 764, 768 (Tenn. 1998) (stating that right

to be present at voir dire of the jury may be personally waived by the defendant

either in writing or on-the-record in open court.”) If a written waiver is executed,

the written form must show at a minimum that the defendant knew and understood

items 1-3 above. In addition, we agree with the State that the written waiver

should not be executed before the close of the prosecution’s case-in-chief.

Costs of this petition to rehear is taxed against the State for which

execution may issue if necessary.

PER CURIAM

-3-