STATE OF LOUISIANA v. JARVIS TURNER (2025)

The State of Louisiana (“State”) seeks review of the district court's October 2, 2024 ruling, which granted Defendant Jarvis Turner's application for post-conviction relief on the grounds that his trial counsel deprived him of his constitutional right to testify at trial. After careful consideration, we grant the State's writ and reverse the district court's ruling.

Defendant was indicted on October 14, 2004, for two counts of armed robbery with a firearm. He was convicted by a jury on August 6, 2007, and sentenced to seventy-five years at hard labor on August 23, 2007. His conviction and sentence were affirmed on appeal. On December 2, 2009, Defendant filed an application for post-conviction relief, claiming ineffective assistance of counsel and alleging that his trial counsel, Edwin Hawkins, prohibited him from testifying. Over the course of years, Defendant filed supplemental memoranda and presented his case to various courts, eventually culminating in an evidentiary hearing on May 8, 2024.

During the evidentiary hearing, Defendant introduced affidavits from Nicole Heisser, a defense investigator; Richard Bourke, director of the Louisiana Capital Assistance Center; Christine Lehmann, a criminal defense attorney; and Majeeda Snead, a clinical professor at Loyola University School of Law. Heisser stated in her affidavit that Defendant expressed a desire to testify during trial but was discouraged by Hawkins, who allegedly told Defendant, “You're not testifying.” Heisser further stated that Hawkins expressed fear that Defendant would be “torn apart” on the stand, and that Defendant later said Hawkins should have allowed him to testify. Bourke's affidavit noted that in September and October 2009, Defendant contacted the Louisiana Capital Assistance Center to complain about communication issues with Hawkins on a separate, first-degree murder case and claimed he had been pressured to accept a plea to manslaughter. Lehmann and Snead provided affidavits discussing a possible conflict of interest between Defendant and Hawkins but offered no direct evidence concerning Defendant's alleged desire to testify. The State introduced a portion of the sentencing transcript reflecting Defendant's statement to the court that he had been denied the right to testify at trial and a portion of the trial transcript reflecting the defense resting its case.¹ The matter was then held open for testimony.

On June 26, 2024, Defendant testified that he had anticipated testifying at his trial and claimed Hawkins ignored his requests to do so. Defendant stated that Hawkins “shushed” him and ultimately told him it was Hawkins’ decision, not Defendant's, whether he would testify. Despite these claims, Defendant failed to provide an affidavit or testimony from Hawkins, who was the only person with direct knowledge of the attorney-client discussions and strategic decisions regarding Defendant's testimony. Additionally, Defendant did not demonstrate any attempts to contact Hawkins or subpoena him for the hearing. Upon the conclusion of the hearing, the matter was submitted for briefing. On August 22, 2024, the district court denied the State's procedural objections. On October 2, 2024, the district court granted Defendant's application for post-conviction relief. This writ follows.

The State argues three points of error: (1) the district court failed to apply a harmless error standard to the alleged denial of the right to testify; (2) Defendant failed to meet his burden of proof to establish that his right to testify was denied; and (3) the district court erred in denying the State's procedural objections.

As a general matter, “[t]he petitioner in an application for post[-]conviction relief shall have the burden of proving that relief should be granted.” La. C.Cr.P. art. 930.2. We review a district court's ruling on an application for post-conviction relief for an abuse of discretion. See State v. Henry, 20-0412, p. 13 (La. App. 4 Cir. 10/29/20), 307 So.3d 249, 257. “[W]hen a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Id. (quoting State v. Thompson, 11-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563). However, when the trial court bases its ruling on an erroneous view of the law, we apply a de novo standard of review. State v. Henry, 20-0233, p. 13 (La. App. 4 Cir. 7/22/20), 302 So.3d 1167, 1169.

1. Applicability of Harmless Error Analysis

The State argues that claims of being denied the right to testify should be subject to a harmless error analysis. Although this Court is bound by the Louisiana Supreme Court's precedent in State v. Hampton, 00-0522 (La. 3/22/02), 818 So.2d 720, which held that such violations constitute structural error not subject to harmless error review, the State's position raises important considerations. The rigid classification of all violations of the right to testify as structural errors, irrespective of their impact on the trial's outcome, may warrant reexamination. Such a standard risks unnecessarily reversing convictions where any error would have been harmless beyond a reasonable doubt. However, as this issue is controlled by Louisiana Supreme Court precedent, we proceed under the current legal framework.

2. Failure to Meet Burden of Proof

Under Louisiana law, a defendant seeking post-conviction relief for being denied the right to testify must provide specific facts and corroborating evidence, such as an affidavit or testimony from trial counsel. See Hampton, 00-0522, p. 14, 818 So.2d at 729-30; State v. Rumley, 14-1077, p. 31 (La. App. 4 Cir. 12/16/15), 183 So.3d 640, 662.

As our Court recently held in State v. Lacourse, 24-0089 (La. App. 4 Cir. 8/16/24), --- So.3d. ----, 2024 WL 3841457:

A defendant has a constitutional right to testify in his own defense. La. Const. art. I, § 16; State v. Dauzart, [ ]99-3471, p. 6 (La. 10/30/00), 769 So.2d 1206, 1207 (citations omitted). The denial of the right to testify after a criminal defendant unequivocally makes known his desire to do so is not amenable to a harmless error analysis. State v. Hampton, [ ]00-0522, p. 10 (La. 3/22/02), 818 So.2d 720, 727. However, a presumption exists that a defendant knowingly waived his right to testify when he does not testify at trial; moreover, the defendant has the burden of proof to satisfy the criteria to refute that presumption. State v. Rumley, [ ]14-1077, p. 31 (La. App. 4 Cir. 12/16/15), 183 So.3d 640, 661-62. The Rumley Court explained as follows:

When a criminal defendant does not take the stand to testify, a court should presume he has knowingly and voluntarily waived his right to do so. State v. Marzett, [ ]13-0274, p. 13 (La. App. 4 Cir. 8/28/13), 123 So.3d 831, 839 (citing Hampton, [ ]00-0522, p. 14, 818 So.2d at 727). A defendant can only rebut such presumption by showing that his attorney caused him to forego his right to testify. Hampton, [ ]00-0522, p. 14, 818 So.2d at 729 (quoting, Passos–Paternina v. United States, 12 F.Supp.2d 231 (D.P.R. 1998)). To make that showing a defendant must: (1) allege specific facts, and present an affidavit by his trial attorney, from which a court can reasonably find that the attorney informed the defendant “that he was legally forbidden to testify or in some similar way compelled him to remain silent;” and (2) demonstrate that the record would support a finding that those specific factual allegations would be credible. Id., [ ]00-0522, p. 14, 818 So.2d at 729-730.

Id.

In applying the first Rumley factor to rebut the presumption of a knowing waiver, Defendant herein neither cites specific facts or produces an affidavit from trial counsel to attest that counsel denied Defendant the right to testify. We also find the record devoid of any documentation that Defendant desired to testify at trial. Instead, Defendant makes merely conclusory, unsupported allegations in her brief. Such conclusory, unsupported allegations do not suffice for this Court to determine that her trial attorney legally forbade Defendant from testifying or compelled her to remain silent. See State v. James, [ ]05-2512, p. 1 (La. 9/29/06), 938 So.2d 691 (‘ “mere conclusory allegations are insufficient’ to rebut a presumption arising from a defendant's silence at trial that he waived his right to testify.”). Accordingly, as Defendant has provided no supporting documentation to rebut the presumption that she knowingly and voluntarily waived her right to testify, Defendant's claim that her counsel was ineffective for denying her the right to testify lacks merit.

24-0089, pp. 10-11, --- So.3d. ----, ----, 2024 WL 3841457, at *5-6 (footnote omitted).

In the case sub judice, Defendant failed to meet this burden of proof similar to the defendant in the Lacourse case. The evidence presented by Defendant lacks the corroboration required for post-conviction relief, particularly in cases alleging structural errors such as the denial of the right to testify. Heisser's affidavit is speculative and lacks critical details about private attorney-client discussions. Heisser was not present during key trial moments and admitted that her knowledge of the situation was secondhand. Similarly, the affidavits from Bourke, Lehmann, and Snead offer no direct evidence of Hawkins’ actions during the trial or any record of Defendant asserting his right to testify.

Defendant testified that Hawkins ignored his repeated requests to testify and unilaterally decided he would not take the stand. However, Defendant presented no corroborating evidence to support these claims. Critically, Defendant did not provide an affidavit or testimony from Hawkins or demonstrate any attempt to contact or subpoena him. The portion of the trial transcript introduced by the State reflecting the defense resting its case undermines Defendant's claim, as it contains no record of Defendant asserting a desire to testify or objecting to Hawkins’ decisions during the trial. Defendant's failure to introduce his trial transcript or any contemporaneous evidence to support his assertions highlights the speculative nature of his claims.

The district court's ruling creates significant concerns. Allowing uncorroborated, self-serving testimony to form the basis of post-conviction relief undermines the integrity of final judgments, incentivizes speculative claims, and overwhelms the judicial system with unsupported allegations. Structural error claims demand a high evidentiary standard to preserve judicial stability and public confidence. By requiring adequate corroborating evidence, courts ensure that legitimate claims are addressed while preventing frivolous litigation.

3. Denial of Procedural Objections

The State objected to Defendant's application under La. C.Cr.P. art. 930.8(B), arguing that Hawkins’ unavailability to testify prejudiced its ability to rebut Defendant's claims. The district court denied these objections. Given Defendant's failure to meet his burden of proof, the State's procedural objections are moot.

CONCLUSION

For these reasons, we grant the State's writ and reverse the district court's October 2, 2024 ruling granting Defendant's application for post-conviction relief.

WRIT GRANTED; RULING REVERSED

In State v. Harrison, 2022-0213, pp. 2-3 (La. App. 4 Cir. 5/11/22), 340 So.3d 159, 162-63, this Court summarized Louisiana's law on a defendant's right to testify in his own defense as follows:

A defendant has a constitutional right to testify in his own defense. La. Const. art. I, § 16; State v. Dauzart, 99-3471, pp. 6-7 (La. 10/30/00), 769 So.2d 1206, 1207-08. The Louisiana Supreme Court has held that the denial of the right to testify, after a criminal defendant unequivocally makes known his desire to do so, is not [amenable] to a harmless error analysis. State v. Hampton, 000522, p. 10 (La. 3/22/02), 818 So.2d 720, 727. When a criminal defendant does not take the stand to testify, a court should presume he has knowingly and voluntarily waived his right to do so. Id. A defendant can only rebut such presumption by showing that his attorney caused him to forego his right to testify. Id. at 729. To make that showing, a defendant must: (1) allege specific facts, and present an affidavit by his trial attorney, from which a court can reasonably find that the attorney informed the defendant “that he was legally forbidden to testify or in some similar way compelled him to remain silent;” and (2) demonstrate that the record would support a finding that those specific factual allegations would be credible. Id. at 729-30.

At Defendant's post-conviction hearing, his specific evidence in support of his allegation that his trial counsel deprived him of the right to testify included affidavits from his criminal defense attorney, Christine Lehmann; law professor D. Majeeda Snead; criminal defense attorney Richard Bourke; and investigator, Nicole Heisser, along with testimony provided by Defendant. Ms. Lehmann, Professor Snead and Mr. Bourke interacted with Defendant after his conviction. Their affidavits, in general, attested to conflicts of interest between Defendant and his trial counsel, Defendant's complaint that he had been unable to contact trial counsel during his pending first-degree murder case, and his assertion that he had been pressured into taking a plea on his manslaughter case. The affidavit of Investigator Heisser, who began work for Defendant in 2007, stated, in pertinent part, that she observed Defendant express his desire to trial counsel during the trial that he wanted to testify and trial counsel's answer was “no;” and that after the trial, Defendant said that trial counsel should have let him testify.

Defendant testified at the post-conviction hearing that he “spoke to Mr. Hawkins [trial counsel] about [his interest in testifying] at court. He said he believed he would testify until the time the State rested his case. He maintained:

[A]s time progressed within the trial, I seen he wasn't calling me to testify in my own behalf. So I took the initiative to get his attention. And he shushed me a few times. And then I finally got his attention and told him, “Man, look, I want to get on the stand and speak in my own behalf.” And he full out told me, No, I was not doing it and it was his decision and not mine.

At the conclusion of the evidentiary hearing, the trial court granted Defendant's post-conviction application. The trial delineated its reasons in its per curiam as follows:

This court conducted an evidentiary hearing concerning Jarvis Turner's petition for post[-]conviction relief over two settings. On May 8, 2024, both petitioner and the state stipulated to the admission of multiple evidentiary documents, including the affidavit of Nicole Heisser, who has firsthand knowledge of Mr. Turner's interactions with his counsel before, during, and after trial. On June 26, 2024, this court heard testimony from Mr. Turner detailing his futile attempts to testify on his own behalf at his trial. Unfortunately, this Court did not hear from Mr. Turner's counsel at the time, Mr. Edwin Hawkins.

On February 22, 2008, attorney Hawkins was suspended from practice for “knowingly and intentionally violating duties owed, and causing harm to his clients and the legal profession”. Relying upon defense counsel's representations, Mr. Hawkins has been unwilling to contribute or participate in Mr. Turner's post-conviction proceedings; therefore, this court has not had the benefit of hearing Mr. Hawkins’ recollection of his dealings with Mr. Turner. Given the affidavit of Ms. Heisser and the testimony of Mr. Turner, this court believes petitioner's claim that he was denied the right to testify on his own behalf is credible.

The Louisiana Supreme Court has held that the denial of a defendant's right to testify is structural. State v. Horn, 251 So.3d 1069, State v. Dauzart, 769 So.2d 1206, 1210-11 (La. 2000) and State v. Hampton, 2000-0522 (La. 3/22/02), 818 So.2d 720. Therefore, this court is convinced that petitioner's trial was subject to a structural constitutional defect, which merits post-conviction relief.

Appellate courts review a district court's factual findings under a deferential standard; whereas, legal findings are subject to a de novo review. State v. Hunt, 2009-1589, p. 6 (La. 12/1/09), 25 So. 3d 746, 751 (citing State v. Hampton, 98-0331, p. 18 (La. 4/23/99), 750 So. 2d 867, 884. In the present matter, the trial court's per curiam reflects that it found Defendant's testimony and Investigator Heisser's affidavit credible that trial counsel denied Defendant his right to testify at trial. As to the evidentiary requirement that Defendant produce an affidavit and/or testimony from his trial counsel to rebut the presumption that Defendant's decision not to testify was voluntary, the trial court relieved Defendant of this obligation based on its findings that trial counsel, who has been suspended from the practice of law, “has been unwilling to contribute or participate in Mr. Turner's post-conviction proceedings.”

Based on a review of the post-conviction transcript proceedings, the trial court's per curiam, and the applicable law, I find no error in the trial court's ruling that Defendant met his burden of proof to show he was deprived of his right to testify. Accordingly, I respectfully dissent and would deny the State's writ application.

FOOTNOTES

1.   The State also introduced a portion of the trial transcript containing the victim's testimony.

Judge Joy Cossich Lobrano

JENKINS, J., DISSENTS WITH REASONS