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Due Process – Defendant’s Right to Testify – Retraction of Waiver – Offer of Proof Required

State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09
For Winters: Ralph Sczygelski

Issue/Holding: Where the defendant validly waived his right to testify but then, after the state had rested and released its rebuttal witnesses, sought to retract the waiver, his failure to make an offer of proof as to the substance of his proposed testimony, either at trial or on postconviction motion, waived his right to seek retraction:

¶17      Wisconsin Stat. § 901.03(1) requires a party challenging the trial court’s ruling excluding evidence to make an offer of proof ….¶18      Here, the trial court excluded evidence, namely Winters’s own testimony. Accordingly, Winters was obligated based on Wis. Stat. § 901.03(1)(b) to make an offer of proof in order to assert error. …

¶20      Although the facts in Brown are different from the instant case, the same legal principles apply. Here, Winters did not request an opportunity to give testimony outside the presence of the jury nor did he submit an affidavit detailing what he planned to say. Without such offer of proof, we cannot review Winters’s claim on appeal that granting his request to revoke his previous waiver and allowing him to take the stand would not have prejudiced the State.

¶21      The determination of whether to allow a defendant to testify after the evidence has closed and after he has previously executed a valid waiver of his right to testify is left to the discretion of the trial court. Arredondo, 269 Wis.  2d 369, ¶¶11, 13, 19. “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.’” Id., ¶19 (citation omitted). Without an offer of proof, the trial court could not consider the potential for prejudice and neither can we.

¶22      Winters offers two excuses for not seeking an offer of proof: (1) his attorney did not want him to testify and thus made no effort to do an offer of proof; and (2) the trial court failed to sua sponte inquire about the substance of his testimony. Neither excuse suffices here. With regard to the latter, as noted above, the trial court was not under any obligation in this instance to be the instigator of an offer of proof. With regard to the former, Winters is correct that his trial attorney made no effort to seek an offer of proof most likely because his counsel believed that taking the stand would not be in Winters’s best interest; however, that moment was not Winters’s only opportunity to submit an offer of proof. He could have done so via an affidavit when he filed his postconviction motion. He did not.

Embellishment of State v. David Arredondo, 2004 WI App 7 (Arredondo similarly waived right to testify, state released rebuttal witnesses, and then retraction of waiver was sought). But there, the trial court found that Arredondo was simply trying to game the system, and the consequential refusal to allow him to testify was upheld on appeal as an appropriate exercise of discretion. And yet another interesting similarity, in Arredondo’s noted failure to make an offer of proof, ¶ 20 n. 2 (“Arredondo did not present any evidence from which the trial court could evaluate the likely value of his testimony.”). But in that case, the absence of a proffer was cited as support for manipulation by defendant, ¶20. Here, no finding of manipulation was made, so the court is in effect taking Arredondoa step farther. Pretty clearly, then, if you’re attempting to undertake a good-faith retraction of waiver you won’t have much choice but to give the state a preview of the testimony. Worse: if the trial court insists, as might well be its prerogative, on a Q & A proffer, then you’re also giving the state a free swipe at the defendant. All in all, the procedure greatly pressurizes the initial decision (not) to testify. Arredondo, incidentally, recently lost his 2254 challenge, David Arredondo v. Huibregtse, 542 F3d 1155 (7th Cir 2008) (for habeas purposes, no controlling authority establishes that trial court must engage in an on-record colloquy with the defendant as to his or her desire not to testify; administration of right to testify reviewed for reasonableness at high level of generality, such that refusal to countenance retracted waiver not objectively unreasonable, given prejudice to prosecution and delay in trial).


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