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Due Process – Defendant’s Right to Testify – Waiver

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence, to rescind the waiver and allow the defendant to testify.

Holding: The trial court’s contemporaneous colloquy with Arredondo “unequivocally demonstrates that Arredondo was aware of his right to testify, and discussed that right with his lawyer. See State v. Weed, 2003 WI 85, ¶43, 263 Wis. 2d 434, 464, 666 N.W.2d 485, 499 (colloquy should consist of inquiry to ensure that defendant was aware of his right to testify and discussed the right with counsel).” ¶13. And, after the last defense witness testified Arredondo told counsel that he did not want to testify (and the trial court concluded that Arredondo had made an “irrevocable decision not to testify in this case”). Though Arredondo later disputed counsel’s assertion, the trial court made a credibility determination in favor of counsel’s version, given which a second on-the-record colloquy wasn’t required. ¶¶14-17. Nor, considering that the State had dismissed its rebuttal witnesses after Arredondo’s waiver, was the court’s refusal to reopen the case to allow Arredondo to testify erroneous:

¶19. “The right to testify must be exercised at the evidence-taking stage of trial.” United States v. Jones, 880 F.2d 55, 59 (8th Cir. 1989). “Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court’s discretion.” Ibid. A trial court must consider “whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings, and if so whether the defendant has a reasonable excuse for failing to present the testimony during his case-in-chief.” United States v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000).¶20. In this case, the trial court considered the potential for prejudice. Arredondo made his request after the trial court told the jury that the evidence-taking stage of the trial was complete, and after the State dismissed its rebuttal witnesses. The trial court determined that “substantial prejudice … would exist to the state and the system and the sequestered jury in order to reopen the case at this time.” As noted, the trial court also found that Arredondo voluntarily gave up his right to testify. Moreover, the trial court found that Arredondo was engaging in “theatrics and … playing for the cameras, perhaps, and that this is a gross attempt to manipulate the system.”2

¶21. “[T]he need for order and fairness in criminal trials is sufficient to justify firm, though not always inflexible, rules limiting the right to testify.” Jones, 880 F.2d at 59. Under the circumstances, we see no infringement of Arredondo’s constitutional right to testify. Further, it is clear from the context of the trial court’s statements that the trial court did not mean that Arredondo’s decision to waive his right to testify was irrevocable as a matter of law. Rather, it determined that it should not re-open based on what it believed was Arredondo’s “attempt to manipulate the system.” The trial court did not erroneously exercise its discretion in not re-opening the evidence.

The court stresses “that Arredondo did not adequately explain what he would have said if allowed to testify,” an omission that supported the trial court’s finding that he was merely being manipulative, ¶20, n 2.

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