This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Charles Jackson,



State of Minnesota,


Filed June 2, 1998


Shumaker, Judge

Olmsted County District Court


John M. Stuart, Minnesota State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Minnesota Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Raymond F. Schmitz, Olmsted County Attorney, 3rd Floor Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



Appellant Charles Jackson challenges his conviction of first-degree burglary and two counts of assault in the second degree, arguing that the trial court erred when it found that appellant was not denied his constitutional right to testify in his own behalf. We affirm.


Prior to trial, appellant's attorney advised him that his testimony would be necessary to establish a defense; but cautioned appellant that his credibility would be impeached with prior convictions. The defense attorney informed appellant that it was appellant's choice as to whether or not he would testify. At that point, appellant chose to testify.

During the trial, the defense attorney was able to have appellant's exculpatory post-arrest statement admitted into evidence without appellant's testimony. The defense attorney then decided that appellant's testimony would be unnecessary to establish a defense and he requested a recess to discuss the issue with appellant.

At the postconviction hearing, the defense attorney testified that, in light of the admission of his exculpatory statement, appellant decided not to testify at the trial. After inquiry by the judge, the defense attorney announced in open court and in appellant's presence that appellant would not testify and that the defense would rest. Appellant indicated that he actually had two conversations with his attorney. In the first, they did not discuss whether or not appellant would testify at the trial. In the second, which occurred in the courtroom on the last day of trial after other defense witnesses had testified, appellant told his attorney that he wanted to testify. Appellant indicated that his attorney assured him that the judge would inquire directly of appellant as to whether he wanted to testify, but the judge did not do so. Rather the judge inquired only of the defense attorney, who stated that appellant would not testify and then rested. Appellant contends that, during the prosecutor's closing argument, he told his attorney that he wanted to testify but his attorney said it was too late.

The district court found that appellant and his attorney discussed trial strategy, including the issue of appellant's testimony, several times prior to trial and that appellant participated actively in these discussions. The district court found that the credible evidence did not support an inference that appellant misunderstood his right to testify and concluded that appellant knowingly and voluntarily waived that right.


On appeal, the decision of the postconviction court is reviewed under abuse of discretion standard. The scope of review is limited to determining whether there is sufficient evidence in the record to sustain the findings of postconviction court. State v. Rainer, 502, N.W.2d 784, 789 (Minn. 1993). Absent abuse of discretion, the postconviction court's decision will not be disturbed. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).

The United States Supreme Court has held that a criminal defendant has a constitutional right to testify in his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed. 37 (1987). Minnesota has recognized that the right to testify in one's own defense is a personal right which counsel does not have the ultimate authority to waive. State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979); Minn. Stat. § 611.11 (1996). Generally, it is conceded that the waiver of the right to testify, like the waiver of many other constitutional rights, should be voluntary and knowing. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).

Appellant does not dispute the district court's findings of fact but challenges the legal conclusion that he made a knowing and voluntary waiver of his constitutional right to testify. Appellant argues that the waiver does not meet the "knowing and voluntary" standard because "no one ever told appellant that once his attorney rested his case he could not change his mind about wanting to testify." In support of this argument, appellant refers to his effort to have his attorney reopen the case during the prosecutor's closing argument. In addition, appellant argues that his effort to have the case reopened demonstrates that he did not understand the finality of any decision he might have made.

The only issue raised on appeal is whether appellant's waiver was knowing and voluntary. Appellant bears the burden of proving that the waiver of his right to testify was not knowing and voluntary. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997). When the trial court record is silent as to waiver, this court must presume that the decision not to testify was made by defendant voluntarily and intelligently. Id. "Furthermore, it is within the postconviction court's discretion to credit the testimony of trial counsel while discrediting the testimony of the defendant." Id.

The record supports the district court's finding that appellant, informed of his options, knowingly and voluntarily chose to waive his right to testify. The record contains sufficient evidence to sustain the district court's findings.