STATE v. CARVIN (2021)

Writ application granted. See per curiam.

Writ granted. The district court found applicant acquiesced in his counsel's strategic recommendation that applicant not testify in his own defense. That factual determination is owed great deference. See, e.g., State v. Bourque, 622 So.2d 198, 222 (La. 1993). Despite that acquiescence, however, the district court found that defendant is entitled to a new trial because his right to testify was violated.

This court in State v. Hampton, 00-0522 (La. 3/22/02), 818 So.2d 720, turned to Passos-Paternina v. United States, 12 F.Supp.2d 231 (D.P.R. 1998) for guidance in determining whether a defendant's right to testify was violated or waived by his silence during trial:

(1) absent extraordinary circumstances that should alert the trial court to a conflict between attorney and client, the court should not inquire into a criminal defendant's right to testify. The court should assume, that a criminal defendant, by not ‘attempting to take the stand,’ has knowingly and voluntarily waived his right;

(2) the court must consider whether the petitioner has waived his right to testify.․ [The defendant can only] rebut that presumption ․ by showing that his attorney caused him to forego his right to testify [ (a) by alleging specific facts, including an affidavit by the defendant's trial counsel] from which the court could reasonably find that trial counsel ‘told [the defendant] that he was legally forbidden to testify or in some similar way compelled him to remain silent ․ ‘[ (b) by demonstrating from the record] that those ‘specific factual allegations would be credible ․’

Hampton, 2000-0522, pp. 729–730 (quoting Passos-Paternina, 12 F.Supp.2d at 239–240).

Here, applicant failed to carry his burden under the second part above of showing that trial counsel told him that he was legally forbidden to testify or in some similar way compelled him to remain silent. Furthermore, the district court's factual determination that defendant acquiesced stands as an obstacle to affording relief. Therefore, the district court erred in granting the application for post-conviction relief and in ordering a new trial.

Accordingly, we grant the State's application to vacate the district court's ruling, which granted relief and ordered a new trial. We remand to the district court to consider the applicant's remaining claims of ineffective assistance, upon which the district court has not yet ruled.

VACATED AND REMANDED

Griffin, J., would deny. Weimer, C. J., recused. Crain, J., recused.